Arizona immigration ruling is constitutionally flawed

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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.

Fifth, the federal government’s fact-sensitive claim to be overwhelmed — and that SB 1070 is therefore preempted — is disingenuous.  The district court accepts the federal government’s contention, without a factual inquiry, that SB 1070 will occasion a surge of inquiries into immigration status, and that this surge will disrupt the federal government’s “priorities” as to immigration.

So the federal government cannot be expected to do more of what it is statutorily charged with doing.  Multiple inquiries as to immigration status sufficiently overwhelm the federal government — such that the federal government’s “priorities” are disrupted.  If vindicated on appeal, this federal government argument becomes a bullet-proof aggrandizement of federal power.

The federal government and the district court rely upon Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 351 (2001) (finding a state “fraud on the FDA” law preempted in part because it would create an incentive for individuals to “submit a deluge of information that the [federal agency] neither wants nor needs, resulting in additional burdens on the FDA’s evaluation of an application”).

In Buckman, the unsolicited “deluge of information” would have been “information” designed to forestall elaborate fact questions in civil litigation.  There is no upper end to the magnitude of “information” one might submit to an agency in theoretical self-protection against civil litigation.  That’s why the Supreme Court found it unduly burdensome to the agency.

S.B. 1070 poses no such “deluge.”  Quite the contrary, the single, simple inquiry contemplated is immigration status — which the federal government itself assures us is a swift determination.  The federal government’s own sworn affidavit in the Arizona case describes the procedure administered by ICE, which “serves as a national enforcement operations center that promptly provides immigration status and identity information to local, state, and federal law enforcement agencies regarding aliens suspected of, arrested for, or convicted of criminal activity.”

In other words, we can get the answer easily and quickly.  There is neither “deluge” nor “delay” here — only a possible increase in precisely the types of inquiries the federal agency is charged by law with dispatching “promptly.”

I say “possible increase” because I don’t even necessarily see the federal government’s factual predicate. Wouldn’t the vast majority of arrests permit the Arizona authorities to conclude that there was no illegal immigrant issue here (and therefore no need to involve the federal government)?  The Arizona statute does not mandate by its terms that every person arrested be subject to federal immigration status validation.  So what will actually happen is a real world determination that there is no immigration issue, or a real world neglect of any possible immigration issue.

Even if the foregoing is subject to factual dispute, it should have militated against entry of a preliminary injunction.  The federal government telling a state it cannot enforce one of its duly enacted laws even before it takes effect is not undertaken lightly.  The legal presumption is against the federal government.

It bears noting in closing that if the federal government’s sweeping theory — partially embraced by Judge Bolton — that the federal government’s dictates as to immigration law are supreme and exclusive, then it cannot be doubted that so-called “sanctuary cities,” the municipalities that conclude — with ordinances — that they will not cooperate with federal immigration law and will not report to the federal government illegal aliens arrested for crimes (Washington, D.C.; New York City; Los Angeles; Chicago; San Francisco; Santa Ana; San Diego; Salt Lake City; Dallas; Houston; Austin; Detroit; Jersey City; Minneapolis; Miami; Denver; Baltimore; Seattle; Portland; New Haven; Portland, Maine), are standing fully athwart the intentions of Congress and the purpose of federal immigration laws, in manifest violation of federal law — and they should be held accountable by DOJ lawsuits.

Kendrick Macdowell is a lawyer and writer living in Washington, DC.