Clarice's Pieces: Long Hot Summer

Faced with a rising crime rate, unending social costs of a porous border with Mexico, and unlimited numbers of illegal immigrants crossing it to take advantage of Arizona's largesse, that state sought a reasonable solution. It passed a law which tracked federal immigration: Those arrested for crimes needed to establish their right to be on U.S. soil, and if they didn't, the federal authorities would be notified and custody turned over to them for deportation upon completion of any sentence for violation of state laws.

Following his pattern of impolitic moves, the Attorney General sued to enjoin the operation of the Arizona law, asserting federal preemption and claiming that the Arizona law would create too much work for (overburden) federal officials. A few days ago, at the conclusion of the injunction hearing, it looked like the Department of Justice had lost that suit. Federal District Court Judge Bolton said that the government had failed to meet its burden of proof for the imposition of injunctive relief. Specifically, she noted the government had failed to show it would suffer irreparable harm if the Arizona statute's enforcement were not enjoined. Jerry Markon of the Washington Post wrote:


"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?"

Days later, she ignored this and other applicable standards to enjoin most (the guts) of the Arizona law.

This is a reminder that until we see an opinion, nothing a judge says in court matters. But it also underscores that what really seems to have motivated Judge Bolton was cowardice. That is a harsh assessment of her performance, but I cannot think of another explanation. She knew what the appropriate standard was, and then she set about to ignore it as busloads of SEIU and open borders activists poured into the state. She was appointed by Clinton and could offer no rational explanation for her judgment despite having just days before -- after she'd heard all the evidence -- come to an opposite conclusion, so it is safe to assume she was afraid to dance with anyone but the political party which brought her to the bench.

Arizona has already filed an appeal. It is to the Ninth Circuit, the most left-wing and frequently reversed circuit in the country. After that, it will surely go to the U.S. Supreme Court.

The Ninth Circuit has stated its standard for reversing appeals for grants of injunctive relief and Judge Bolton's order would seem to meet its test [l].

First Brands v. Fred Meyer, Inc. 1987:

A district court's order regarding preliminary injunctive relief is subject to limited review. The grant or denial of a preliminary injunction will be reversed only where the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. Sardi's Restaurant Corp. v. Sardie, 755 F.2d 719, 722-23 (9th Cir.1985). See also Apple Computer, Inc. v. Formula Int'l, Inc., 725 F.2d 521, 523 (9th Cir.1984).

Given the Circuit's history and the politics of the case, though, one cannot by any means believe it will do the right thing and lift the injunction, even though, as Mark Levin notes, the opinion is an "abomination."

The Court cited the right legal standard. In this case, it is that a request for preliminary injunctive relief precluding the enforcement of a statute is the most difficult challenge of all, because the plaintiff must demonstrate the law can never be constitutionally applied. Hypothetical argument will not meet this test. Nevertheless, that is what happened here. Judge Bolton's opinion is based on pure supposition that the Arizona law will create an undue work burden for the federal government. Mark Levin writes on Human Events:

Amazingly, the court does not provide any substantive analysis of the very high standards required for mounting a successful facial challenge. The judge thinks certain events or difficulties will occur, and therefore uses her thoughts as a substitute for empirical evidence. The fact is that Arizona does not create any new or additional federal responsibilities. It does not establish any new or inconsistent obligations for aliens legally or illegally residing or otherwise found in Arizona. And, unlike the Hines case so prominent in the court's ruling, Arizona's law does not establish any new or extra forms, registration procedures, or other obligations for aliens, legal or otherwise.

Now, respecting preemption, we hear this word thrown around all the time.  There is Supreme Court precedent on this issue.  The issue here is whether federal immigration law preempts Arizona's state law.  The issue in that respect is whether the federal law covers the whole field.  Whether the federal law is not meant to cover the whole field but also relies on state and local support.

So respecting preemption which is the substantive core of the federal government's case, once again the court presents no evidence in support of its conclusion that Arizona is likely to fail on inquiring into the legal status, among other things, or that it will impermissibly interfere with federal government's allocation of resources. 

Ladies and gentlemen, Arizona isn't requiring the federal government to do anything. The federal government can choose not to take Arizona's calls and not cooperate with Arizona. The court has essentially parroted the federal government's arguments and suppositions about its burdens.

Moreover, Arizona does not preempt federal law as explained above.  It does not create a new immigration regime.  The federal government does not "occupy the field" in any event.

As a matter of longstanding federal law practice, it encourages states to assist in the enforcement of federal immigration law.

Professor Jacobson at Legal Insurrection posts the opinion and his analyses:

The result of this statutory interpretation was that the Court found the procedure -- as written -- to interfere with the federal immigration scheme:

Thus, an increase in the number of requests for determinations of immigration status, such as is likely to result from the mandatory requirement that Arizona law enforcement officials and agencies check the immigration status of any person who is arrested, will divert resources from the federal government's other responsibilities and priorities.

The Court also opined on potential 4th Amendment issues with the law, and used that as a second basis for the decision (at p. 16):

Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully-present aliens because their liberty will be restricted while their status is checked. Given the large number of people who are technically "arrested" but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification.

Similar reasoning was used in striking the provisions as to status checks during stops (short of arrest).

The decision has to be viewed as a near complete victory for opponents of the law, as it restricts the state from routine and compulsory checks of immigration status as a matter of legislative mandate.

The decision would not, as I read it, prevent police from checking immigration status in a particular case, but would prevent a statewide system to do so.

The result of the decision will be to have a chilling effect on law enforcement officers who, in the absen[c]e of the law, would have checked immigration status based on reasonable suspicion anyway. Enforcement of immigration laws in Arizona, as a result of the decision, will be even more difficult than prior to S.B. 1070.

NRO's Andrew McCarthy, a former federal prosecutor, deemed the opinion "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." [A ruling at odds with a more recent Supreme Court decision and a ruling by the Fifth Circuit Court of Appeals]

But it is not just that the decision is so dishonest that rankles.

In Professor Jacobson's view -- a view I share -- the opinion creates a sense of anarchy and promotes lawlessness.

States have been left helpless to deal with the anarchy created by the failure of the federal government to enforce border security. Whereas yesterday it was unclear how far states (such as Rhode Island) could go, today states are powerless.

The inability of a state to implement a policy of checking the immigration status even of people already under arrest for some other crime is remarkable.  [snip]

As a reader to my prior post points out, states already routinely run searches for a variety of statuses, including outstanding warrants, child support orders, and non-immigration identity checks. Each of these checks potentially could delay release of an innocent person or burden some federal agency.

The Judge's reasoning, particularly that the status check provision violated the 4th Amendment even as to persons already under arrest, applies just as easily to these other status checks.

With a federal government, which refuses to take action at the border until there is a deal on "comprehensive" immigration reform, meaning rewarding law breakers with a path to citizenship, this decision will insure a sense of anarchy. The law breakers have been emboldened today, for sure.

As it stands this afternoon, it is perfectly rational for someone faced with the choice of obeying the immigration laws or not, to choose not to do so. The choice of lawlessness makes a lot more sense than spending years winding through the byzantine legal immigration system, because the end result will be the same but lawlessness gets you here more quickly.

When the law and the federal government reward lawlessness, something is very wrong.

In any event, the decision to sue Arizona and the weak justification for the injunction has stirred the hive, and support for border security and Arizona is high and rising. Voters see the danger to them in lawlessness and anarchy and value the concept of national sovereignty -- even though these seem to have escaped the attention of the political class, which sees in unlimited and unchecked immigration only a means to perpetuate their power.

Add the widespread anger at ObamaCare which also is rising, and the road to election 2010 is getting ever bumpier  for the president's party.

Moderates who once thought it safe to sit back and let the courts safeguard their constitutional rights are having their eyes opened to the far superior option of replacing the executive and legislative branches that appoint the judiciary to lifetime seats.

In response to all this public rage, Obama briefly interrupted some big-money fundraisers at places like Vogue editor Wintour's Manhattan townhouse and shows his contempt for the voters' intelligence by avoiding any hard questions and doing a gig on  the daytime yak feast "The View." As Rush notes, his appearance provided that show with some badly needed estrogen.

It is months before the election, and conventional wisdom is that the anger will abate by then. Conventional wisdom doesn't take into account the tin ear of the president and his Attorney General. Holder's conduct will assure that these hot issues -- and the oil drilling moratorium, which is also highly unpopular -- will be kept at a boil. Andrew Cohen writes in Politics Daily:

If the feds are playing "offense" against Arizona they are surely playing defense against challenges to the new health care law. All over the country, in dozens of lawsuits, federal lawyers have gone to court to try to save the new federal laws against all sorts of legal challenges brought both by state attorneys general and private citizens. Holder and Company are hoping for a quick knockout blow in these lawsuits: they hope to convince the federal judiciary that there is plenty of Congressional power and authority, under several different Constitutional provisions, to support the new measures. If the Justice Department loses these early battles, we'll surely see litigation up to and including 2014, the year in which many of the more controversial health care provisions are set to take effect. And even if the feds win early here such litigation may still be likely.

If the health care challenges were not enough, Justice faces continued, intense and complex litigation over the Interior Department's sloppy push to impose an oil drilling moratorium -- six months -- in the Gulf of Mexico. The first time Justice lawyers went to court to defend the drilling ban the federal judge who presided over the hearing opened up a can of whup-ass on them-- blasting the lawyers for the glaring weaknesses in the "client's" factual bases for the ban. Since then, and a lost round of appeals, the Interior Department has tried again to impose the ban. This ensures for the embattled Justice Department months more of courtroom combat.... No one six months ago could have foreseen this enormous legal jumble of cases and claims and controversies that have arisen in the wake of the Deepwater Horizon disaster.
Faced with a rising crime rate, unending social costs of a porous border with Mexico, and unlimited numbers of illegal immigrants crossing it to take advantage of Arizona's largesse, that state sought a reasonable solution. It passed a law which tracked federal immigration: Those arrested for crimes needed to establish their right to be on U.S. soil, and if they didn't, the federal authorities would be notified and custody turned over to them for deportation upon completion of any sentence for violation of state laws.

Following his pattern of impolitic moves, the Attorney General sued to enjoin the operation of the Arizona law, asserting federal preemption and claiming that the Arizona law would create too much work for (overburden) federal officials. A few days ago, at the conclusion of the injunction hearing, it looked like the Department of Justice had lost that suit. Federal District Court Judge Bolton said that the government had failed to meet its burden of proof for the imposition of injunctive relief. Specifically, she noted the government had failed to show it would suffer irreparable harm if the Arizona statute's enforcement were not enjoined. Jerry Markon of the Washington Post wrote:


"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?"

Days later, she ignored this and other applicable standards to enjoin most (the guts) of the Arizona law.

This is a reminder that until we see an opinion, nothing a judge says in court matters. But it also underscores that what really seems to have motivated Judge Bolton was cowardice. That is a harsh assessment of her performance, but I cannot think of another explanation. She knew what the appropriate standard was, and then she set about to ignore it as busloads of SEIU and open borders activists poured into the state. She was appointed by Clinton and could offer no rational explanation for her judgment despite having just days before -- after she'd heard all the evidence -- come to an opposite conclusion, so it is safe to assume she was afraid to dance with anyone but the political party which brought her to the bench.

Arizona has already filed an appeal. It is to the Ninth Circuit, the most left-wing and frequently reversed circuit in the country. After that, it will surely go to the U.S. Supreme Court.

The Ninth Circuit has stated its standard for reversing appeals for grants of injunctive relief and Judge Bolton's order would seem to meet its test [l].

First Brands v. Fred Meyer, Inc. 1987:

A district court's order regarding preliminary injunctive relief is subject to limited review. The grant or denial of a preliminary injunction will be reversed only where the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. Sardi's Restaurant Corp. v. Sardie, 755 F.2d 719, 722-23 (9th Cir.1985). See also Apple Computer, Inc. v. Formula Int'l, Inc., 725 F.2d 521, 523 (9th Cir.1984).

Given the Circuit's history and the politics of the case, though, one cannot by any means believe it will do the right thing and lift the injunction, even though, as Mark Levin notes, the opinion is an "abomination."

The Court cited the right legal standard. In this case, it is that a request for preliminary injunctive relief precluding the enforcement of a statute is the most difficult challenge of all, because the plaintiff must demonstrate the law can never be constitutionally applied. Hypothetical argument will not meet this test. Nevertheless, that is what happened here. Judge Bolton's opinion is based on pure supposition that the Arizona law will create an undue work burden for the federal government. Mark Levin writes on Human Events:

Amazingly, the court does not provide any substantive analysis of the very high standards required for mounting a successful facial challenge. The judge thinks certain events or difficulties will occur, and therefore uses her thoughts as a substitute for empirical evidence. The fact is that Arizona does not create any new or additional federal responsibilities. It does not establish any new or inconsistent obligations for aliens legally or illegally residing or otherwise found in Arizona. And, unlike the Hines case so prominent in the court's ruling, Arizona's law does not establish any new or extra forms, registration procedures, or other obligations for aliens, legal or otherwise.

Now, respecting preemption, we hear this word thrown around all the time.  There is Supreme Court precedent on this issue.  The issue here is whether federal immigration law preempts Arizona's state law.  The issue in that respect is whether the federal law covers the whole field.  Whether the federal law is not meant to cover the whole field but also relies on state and local support.

So respecting preemption which is the substantive core of the federal government's case, once again the court presents no evidence in support of its conclusion that Arizona is likely to fail on inquiring into the legal status, among other things, or that it will impermissibly interfere with federal government's allocation of resources. 

Ladies and gentlemen, Arizona isn't requiring the federal government to do anything. The federal government can choose not to take Arizona's calls and not cooperate with Arizona. The court has essentially parroted the federal government's arguments and suppositions about its burdens.

Moreover, Arizona does not preempt federal law as explained above.  It does not create a new immigration regime.  The federal government does not "occupy the field" in any event.

As a matter of longstanding federal law practice, it encourages states to assist in the enforcement of federal immigration law.

Professor Jacobson at Legal Insurrection posts the opinion and his analyses:

The result of this statutory interpretation was that the Court found the procedure -- as written -- to interfere with the federal immigration scheme:

Thus, an increase in the number of requests for determinations of immigration status, such as is likely to result from the mandatory requirement that Arizona law enforcement officials and agencies check the immigration status of any person who is arrested, will divert resources from the federal government's other responsibilities and priorities.

The Court also opined on potential 4th Amendment issues with the law, and used that as a second basis for the decision (at p. 16):

Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully-present aliens because their liberty will be restricted while their status is checked. Given the large number of people who are technically "arrested" but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification.

Similar reasoning was used in striking the provisions as to status checks during stops (short of arrest).

The decision has to be viewed as a near complete victory for opponents of the law, as it restricts the state from routine and compulsory checks of immigration status as a matter of legislative mandate.

The decision would not, as I read it, prevent police from checking immigration status in a particular case, but would prevent a statewide system to do so.

The result of the decision will be to have a chilling effect on law enforcement officers who, in the absen[c]e of the law, would have checked immigration status based on reasonable suspicion anyway. Enforcement of immigration laws in Arizona, as a result of the decision, will be even more difficult than prior to S.B. 1070.

NRO's Andrew McCarthy, a former federal prosecutor, deemed the opinion "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." [A ruling at odds with a more recent Supreme Court decision and a ruling by the Fifth Circuit Court of Appeals]

But it is not just that the decision is so dishonest that rankles.

In Professor Jacobson's view -- a view I share -- the opinion creates a sense of anarchy and promotes lawlessness.

States have been left helpless to deal with the anarchy created by the failure of the federal government to enforce border security. Whereas yesterday it was unclear how far states (such as Rhode Island) could go, today states are powerless.

The inability of a state to implement a policy of checking the immigration status even of people already under arrest for some other crime is remarkable.  [snip]

As a reader to my prior post points out, states already routinely run searches for a variety of statuses, including outstanding warrants, child support orders, and non-immigration identity checks. Each of these checks potentially could delay release of an innocent person or burden some federal agency.

The Judge's reasoning, particularly that the status check provision violated the 4th Amendment even as to persons already under arrest, applies just as easily to these other status checks.

With a federal government, which refuses to take action at the border until there is a deal on "comprehensive" immigration reform, meaning rewarding law breakers with a path to citizenship, this decision will insure a sense of anarchy. The law breakers have been emboldened today, for sure.

As it stands this afternoon, it is perfectly rational for someone faced with the choice of obeying the immigration laws or not, to choose not to do so. The choice of lawlessness makes a lot more sense than spending years winding through the byzantine legal immigration system, because the end result will be the same but lawlessness gets you here more quickly.

When the law and the federal government reward lawlessness, something is very wrong.

In any event, the decision to sue Arizona and the weak justification for the injunction has stirred the hive, and support for border security and Arizona is high and rising. Voters see the danger to them in lawlessness and anarchy and value the concept of national sovereignty -- even though these seem to have escaped the attention of the political class, which sees in unlimited and unchecked immigration only a means to perpetuate their power.

Add the widespread anger at ObamaCare which also is rising, and the road to election 2010 is getting ever bumpier  for the president's party.

Moderates who once thought it safe to sit back and let the courts safeguard their constitutional rights are having their eyes opened to the far superior option of replacing the executive and legislative branches that appoint the judiciary to lifetime seats.

In response to all this public rage, Obama briefly interrupted some big-money fundraisers at places like Vogue editor Wintour's Manhattan townhouse and shows his contempt for the voters' intelligence by avoiding any hard questions and doing a gig on  the daytime yak feast "The View." As Rush notes, his appearance provided that show with some badly needed estrogen.

It is months before the election, and conventional wisdom is that the anger will abate by then. Conventional wisdom doesn't take into account the tin ear of the president and his Attorney General. Holder's conduct will assure that these hot issues -- and the oil drilling moratorium, which is also highly unpopular -- will be kept at a boil. Andrew Cohen writes in Politics Daily:

If the feds are playing "offense" against Arizona they are surely playing defense against challenges to the new health care law. All over the country, in dozens of lawsuits, federal lawyers have gone to court to try to save the new federal laws against all sorts of legal challenges brought both by state attorneys general and private citizens. Holder and Company are hoping for a quick knockout blow in these lawsuits: they hope to convince the federal judiciary that there is plenty of Congressional power and authority, under several different Constitutional provisions, to support the new measures. If the Justice Department loses these early battles, we'll surely see litigation up to and including 2014, the year in which many of the more controversial health care provisions are set to take effect. And even if the feds win early here such litigation may still be likely.

If the health care challenges were not enough, Justice faces continued, intense and complex litigation over the Interior Department's sloppy push to impose an oil drilling moratorium -- six months -- in the Gulf of Mexico. The first time Justice lawyers went to court to defend the drilling ban the federal judge who presided over the hearing opened up a can of whup-ass on them-- blasting the lawyers for the glaring weaknesses in the "client's" factual bases for the ban. Since then, and a lost round of appeals, the Interior Department has tried again to impose the ban. This ensures for the embattled Justice Department months more of courtroom combat.... No one six months ago could have foreseen this enormous legal jumble of cases and claims and controversies that have arisen in the wake of the Deepwater Horizon disaster.