Andy McCarthy: judicial decision on Arizona law is "specious"

On a quick read, the federal court's issuance of a temporary injunction against enforcement of the major provisions of the Arizona immigration law appears specious.

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 judge also employs a cute bit of sleight-of-hand. She repeatedly invokes a 1941 case, Hines v. Davidowitz, in which the Supreme Court struck down a state alien-registration statute. In Hines, the high court reasoned that the federal government had traditionally followed a policy of not treating aliens as "a thing apart," and that Congress had therefore "manifested a purpose ... to protect the liberties of law-abiding aliens through one uniform national system" that would not unduly subject them to "inquisitorial practices and police surveillance." But the Arizona law is not directed at law-abiding aliens in order to identify them as foreigners and subject them, on that basis, to police attention. It is directed at arrested aliens who are in custody because they have violated the law. And it is not requiring them to register with the state; it is requiring proof that they have properly registered with the federal government — something a sensible federal government would want to encourage.

Judge Bolton proceeds from this misapplication of Hines to the absurd conclusion that Arizona can't ask the federal government for verification of the immigration status of arrestees — even though federal law prohibits the said arrestees from being in the country unless they have legal status — because that would tremendously burden the feds, which in turn would make the arrestees wait while their status is being checked, which would result in the alien arrestees being treated like "a thing apart."

Bolton decision leaves significant parts of Arizona law in effect

Federal Judge Susan Bolton ordered an injunction today of Arizona’s immigration enforcement law, formerly known as SB1070, just hours before it’s scheduled to take effect. Supporters of immigration enforcement are angry and frustrated over the ruling, but there is hope in the halls of Congress – of all places. If Congress passed the SAVE Act and CLEAR Act, these two bills together would secure the border, mandate E-Verify nationwide, and provide local law enforcement officials with the tools to help federal officials enforce immigration laws obviating the need for SB1070.

Let’s take a look at exactly what today’s ruling by Judge Bolton actually represents. It’s an injunction – or a temporary suspension – of several provisions within Arizona’s immigration enforcement law. It’s not the final decision. After hearing both sides of the case in a lengthy civil trial, Judge Bolton could decide that the federal government did not do a satisfactory job of proving their case, thereby causing her to lift her injunction. While that’s highly unlikely, it is possible.

Judge Bolton’s decision did strike down SB1070’s most famous clause that requires local police officers to check an individual’s immigration status if they have ‘reasonable suspicion’ that the individual is in the country illegally.

The decision did not suspend provisions that prohibit sanctuary cities, require state and local cooperation with federal officials, allow its residents to sue local leaders for refusing to cooperate with federal officials, prohibit the transport of illegal aliens, and restrict solicitation of illegal alien day laborers.

Arizona’s mandatory E-Verify law that was passed several years ago is still intact, including its sanctions for businesses that knowingly hire illegal aliens. Plus, any communities that participate in the federal government’s 287(g) and Secure Communities programs can still do so, and SB1070 prevents local municipalities from outright refusing to cooperate with federal enforcement officials.

In other words, despite Judge Bolton’s ruling today, SB1070 is still a step in the right direction for Arizona.

Judge: "Why can't Arizona be as inhospitable as they wish...?

PHOENIX -- A federal judge pushed back Thursday against a contention by the Obama Justice Department that a tough new Arizona immigration law set to take effect next week would cause "irreparable harm" and intrude into federal immigration enforcement.

"Why can't Arizona be as inhospitable as they wish to people who have entered or remained in the United States?" U.S. District Judge Susan Bolton asked in a pointed exchange with Deputy Solicitor General Edwin S. Kneedler. Her comment came during a rare federal court hearing in the Justice Department's lawsuit against Arizona and Gov. Jan Brewer (R).

Bolton, a Democratic appointee, also questioned a core part of the Justice Department's argument that she should declare the law unconstitutional: that it is "preempted" by federal law because immigration enforcement is an exclusive federal prerogative.

"How is there a preemption issue?" the judge asked. "I understand there may be other issues, but you're arguing preemption. Where is the preemption if everybody who is arrested for some crime has their immigration status checked?"