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."
The ruling ignores that, in the much later case of Plyler v. Doe (1982), the Supreme Court has emphasized that
Although the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State's economy generally, or the State's ability to provide some important service. Despite the exclusive federal control of this Nation's borders, we cannot conclude that the States are without power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns. [Emphasis added.]
Furthermore, as Matt Mayer of the Heritage Foundation notes, the Fifth Circuit federal appeals court similarly held in Lynch v. Cannatella (1987) that "No statute precludes other federal, state, or local law enforcement agencies from taking other action to enforce this nation's immigration laws."
However this ruling came out, it was only going to be the first round. Appeal is certain. But the gleeful Left may want to put away the party hats. This decision is going to anger most of the country. The upshot of it is to tell Americans that if they want the immigration laws enforced, they are going to need a president willing to do it, a Congress willing to make clear that the federal government has no interest in preempting state enforcement, and the selection of judges who will not invent novel legal theories to frustrate enforcement. They are not going to get that from the Obama/Reid/Pelosi Democrats.
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3 hours ago
I'd love to refudiate (as they say) both Levin and McCarthy, because I've rarely read two thinkers more obnoxious, but I just don't understand this legalese. Take, for instance, McCarthy's citation of Plyler v. Doe (1982).
ReplyDeleteThe passage he quotes from a footnote in a majority decision that actually struck down a Texas statute that would have barred educational benefits to illegal aliens. The actual opinion, in other words, was sympathetic to causes that pro-immigration activists would endorse now. So even though the Court says states may have some power to "deter the influx," it's not clear at all whether or not the Arizona statute in question falls under the Court's accepted limits.
Moreover, in the dissent in this case, Justice Burger wrote this in a footnote:
"A state has no power to prevent unlawful immigration, and no power to deport illegal aliens; those powers are reserved exclusively to Congress and the Executive. If the Federal Government, properly chargeable with deporting illegal aliens, fails to do so, it should bear the burdens of their presence here."
At the very least, the Supreme Court has not been clear on this subject, and if there is an appeal, things could get interesting. Again, I have to read more before I can happily dismiss Levin/McCarthy and return to my ideological comfort zone.
(Its legality aside, the Arizona statute's own merits deserve to be debated as well. Needless to say, I disagree with most of it.)
Re: You first point about Plyer v. Doe...
ReplyDeleteIt seems irrelevant to me that the end result of the decision differs from the implications of a given aspect of the ruling that's being cited. Afterall, we are talking about implication; not controvening the actual text.
It's pretty common that segments of decisions are used as arguments in other contexts of other cases, isn't it? Or at least that's what I remember from my Con Law class some 6 years ago. That seems especially true when talking about a footnnate of court decisions, which often are referencing tangential points.
I actually agree with you about Levin. I find him obnoxious. I've noticed though in reading his stuff on National Review that he seems to almost have two personalities. He's really sharp and precise in his writing about the law. He's kinda an exaggering/inaccurate jack-wad at times in his general discussions on politics.
ReplyDeleteMcCarthy is a really sharp guy. I haven't seen much of his political writing that I find offensive. But then I mostly agree with him...
I do think that the arguments before the Supreme Court will be pretty fascinating.
One aspect that I think is interesting is that a lot of the critiques of this recent injunction have criticized the judge for wrongly assessing based on the Federal application of law, as opposed to any impact that Arizona's activity would relate to the text of Federal law. (This is a major aspect of Levin's argument)
Conceptually, that seems like a really interesting area of legal argument (ie: what rights does a state possess in the face of a federal dereliction of responsibility?) I'm really curious to see what the SC says about it. (And the Exec/Congress will react to the SC's opinion).
Afterall, who doesn't love a good turf war?