Heather MacDonald says that Judge Bolton misinterpreted precedent and willfully misunderstood what the law actually says.
In enjoining Arizona’s landmark immigration law, U.S. District Judge Susan Bolton maintains the Obama administration’s carefully cultivated fiction: that what concerns the White House regarding S.B. 1070 is its effect on legal, rather than illegal, aliens. Almost nowhere in the government’s briefs or the judge’s ruling is the arrest and detention of illegal aliens addressed. This fiction is transparent, however. The real threat posed by S.B. 1070 was that it would disrupt the de facto amnesty that the executive branch has accorded to the vast majority of illegal aliens. It would start to implement congressional mandates and the public will that the immigration laws be enforced. For that reason, it had to be stopped.
My favorite section:
Judge Bolton’s ruling regarding S.B. 1070’s provision on the possession of immigration documents verges on bad faith. S.B. 1070 adopts virtually verbatim a federal law requiring lawful aliens to carry their immigration papers with them; the Arizona version merely lessens the federal penalties regarding the amount of the fine and possible jail time for violation of the federal document requirement. As the judge notes, federal registration power is exclusive; Congress’s registration scheme may not be altered by the states. But nothing in S.B. 1070 changes the rules for registration; the Arizona law merely confirms those rules in state law. Judge Bolton alleges that the Arizona provision “alters the penalties” in the federal law, without disclosing that the Arizona law lowers them. She concludes without the slightest trace of argument that the Arizona document provision “stands as an obstacle to the uniform federal registration scheme and is therefore impermissible.”
Andy McCarthy has a slightly different take on the ruling.
http://corner.nationalreview.com/post/?q=NjMyZmVkMmUzYWIxYTAzY2QxOTA0ZDg5OWQyYzg1MzQ=
In essence, Judge Susan Bolton bought the Justice Department's preemption argument — i.e., the claim that the federal government has broad and exclusive authority to regulate immigration, and therefore that any state measure that is inconsistent with federal law is invalid. The Arizona law is completely consistent with federal law. The judge, however, twisted to concept of federal law into federal enforcement practices (or, as it happens, lack thereof). In effect, the court is saying that if the feds refuse to enforce the law the states can't do it either because doing so would transgress the federal policy of non-enforcement ... which is nuts.
The National Review Online says that the ruling turns the world upside down.
http://article.nationalreview.com/438844/detaining-arizona/the-editors
Judge Bolton notes that the Department of Homeland Security has set up a national operations center to promptly apprise local, state, and federal law-enforcement agencies of the legal status of aliens they encounter in the course of their work. Federal law requires that DHS “respond to an inquiry by a federal, state, or local government agency, seeking to verify or ascertain the citizenship or immigration status . . . for any purpose authorized by law, by providing the requested verification or status information.”
Bolton bizarrely turns this explicit acknowledgment that the federal government envisions a state role in enforcement, and this requirement that the feds cooperate with states and municipalities, against Arizona. If the state finds too many suspected illegal aliens, it will overburden the system. “An increase in the number of requests for determinations of immigration,” she writes, “will divert resources from the federal government’s other responsibilities and priorities.” Earlier in her decision, Judge Bolton sets out the different kinds of preemption, e.g. field preemption (where federal regulation is so comprehensive it “occupies the field”) and conflict preemption (where a state law is at odds with a federal law). This is something utterly different: “We can’t be bothered to answer the phone” preemption.
I hope you found these anlyses informative. All of them have a slightly different take, but all agreed that Judge Bolton got that law wrong in this ruling. From what I know of the new law AND of Federal law, I believe they are correct.
Read the rest...
