Arizona immigration ruling is constitutionally flawed

Judge Susan Bolton ruled on the federal government’s motion to enjoin enforcement of the Arizona immigration law, commonly known as S.B. 1070.  She split the baby — most of the law will still go into effect, but its most controversial provisions will be enjoined.  She concluded that these controversial provisions are likely to be preempted by federal law.

The ruling is intelligent and well-organized, but, in my early opinion, seriously constitutionally flawed.

Here is my guiding principle (articulated two weeks ago): if the Arizona law is actually administered in a racist or disruptive way, then by all means, Godspeed, sue and win.  But the juggernaut assault on the Arizona law as presumptively unconstitutional because it is presumptively racist and presumptively disruptive of federal immigration law is nonsense.  There is a “strong presumption of constitutionality that applies to legislative enactments.”  First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California, 482 U.S. 304 (1987).

Judge Bolton ruled that essential parts of the Arizona law are presumptively bad without an adequate basis for so ruling.

The key controversy is the requirement that a person arrested for commission of crime have his or her immigration status confirmed before release.  Judge Bolton declared that provision likely unconstitutional because:

(1) “This requirement … is likely to burden legally-present aliens, in contravention of the Supreme Court’s directive … that aliens not be subject to ‘the possibility of inquisitorial practices and police surveillance.’”  Hines v. Davidowitz, 312 U.S. 52 (1941).

(2) “The number of requests that will emanate from Arizona as a result of determining the status of every arrestee is likely to impermissibly burden federal resources and redirect federal agencies away from the priorities they have established.”

Essentially, Judge Bolton rules that the Arizona law disrupts federal immigration enforcement because it might add a burden to legal aliens, and because it might burdensomely increase the immigration status inquiries to the federal agency charged with answering inquiries as to immigration status.

First — “inquisitorial practices and police surveillance”?  That’s rhetorical hyperbole drawn from a case decided in 1941, which was 69 years closer to the Spanish Inquisition, and a very different world of race relations — and by the way, it had to do with state registration of legal aliens.  That Judge Bolton would play upon that anachronistic hyperbole might disclose an agenda.

Second, whatever might constitute an impermissible “inquisitorial practice and police surveillance,” the simple and straightforward inquiry into immigration status doesn’t seem to implicate the darkness of either the Inquisition or a police state.  It’s just, are you here legally or not?

Third, the Supreme Court actually held in 1941 that:

“our primary function is to determine whether, under the circumstances of this particular case, Pennsylvania’s law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

Neither of Judge Bolton’s conclusions address that question.  Had the Hines question been the question here, the answer is that the Arizona law does not stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

Fourth, the federal government argued, and the district court accepted, that S.B 1070 “necessarily imposes substantial burdens on lawful immigrants in a way that frustrates the concern of Congress for nationally-uniform rules governing the treatment of aliens throughout the country – rules designed to ensure ‘our traditional policy of not treating aliens as a thing apart.’ (Pl.’s Mot. at 26 (quoting Hines v. Davidowitz, 312 U.S. 52, 73 (1941)).”

The Supreme Court actually held in Hines v. Davidowitz as follows:

“The legislative history of the Act indicates that Congress was trying to steer a middle path, realizing that any registration requirement was a departure from our traditional policy of not treating aliens as a thing apart, but also feeling that the Nation was in need of the type of information to be secured.”

In other words, the Supreme Court was noting Congress’ ambivalence.  Judge Bolton’s, and the federal government’s, lifting of the bolded language out of context misrepresented the Supreme Court’s acknowledgement that there can be a countervailing interest in simple information — of exactly the sort SB 1070 is designed to provide.