Ignoring the Law
A judge's ruling against Arizona's SB 1070 doesn't square with federal immigration law.


The Obama administration’s hilarious commerce-clause argument against Arizona’s immigration law was too much even for U.S. District Judge Susan “Rubber Stamp” Bolton. The Justice Department had maintained that the Arizona statute’s ban on smuggling illegal aliens while committing another crime — a provision targeting drug dealers — violates the Constitution’s assignment of the regulation of interstate commerce to the federal government. The federal interest in the unimpeded transport of drug runners and scouts across state lines, one must infer from the department’s brief, trumps a state’s interest in keeping drug dealing away from its residents.

Displaying a judicial acumen otherwise lacking in her opinion, Judge Bolton noted that the United States had not “provided a satisfactory explanation for how [the anti-smuggling section], which creates parallel state statutory provisions for conduct already prohibited by federal law, has a substantial effect on interstate commerce.” Moreover, noted the judge, one must weigh the burden on “interstate commerce” against the putative local benefits from its regulation.

Such commonsense reasoning and fidelity to the law is what we expect of a federal judge. Had Judge Bolton merely maintained such virtues throughout the rest of her opinion — weighing the alleged costs of the Arizona law against its alleged benefits, demanding evidence of those alleged costs, noticing that the most disputed sections of the state statute merely parallel federal law — she would have reached a different result. Instead, her opinion is notable for its superficial and conclusory reasoning, both in its application of the extremely demanding standard for granting a preliminary injunction, and in her substantive analysis of SB 1070’s alleged constitutional infirmities.

You’d hardly know from reading U.S. v. Arizona that there was a single illegal alien in the country. Judge Bolton’s ruling, like the Justice Department’s brief, is couched exclusively in terms of how SB 1070 will affect legal aliens. But her reasoning in finding that SB 1070 would impermissibly burden legal immigrants, and would thus allegedly conflict with federal immigration law and policy, would make it impossible to ever enforce immigration law. It is her reasoning, not SB 1070, that conflicts with clear congressional mandates.

The Arizona statute officially affirms the power of a local police officer or sheriff’s deputy to inquire into someone’s immigration status, if the officer has reasonable suspicion that the person is in the country illegally, and if doing so is practicable. Under SB 1070, such an inquiry may occur only during a lawful stop to investigate a non-immigration offense.

Local police and deputies had the authority to make such inquiries before SB 1070, not just in Arizona, but nationwide. In 1996, Congress banned so-called sanctuary laws, by which cities and states prohibit their employees from cooperating with federal immigration authorities regarding illegal aliens. It was in the federal interest, Congress declared, that local and federal authorities cooperate in the “apprehension, detention or removal of [illegal] aliens.” As the Senate report accompanying the congressional ban on sanctuary cities declared, “illegal aliens do not have the right to remain in the United States undetected and unapprehended.” To assist the mandated state-federal cooperation on immigration matters, the INS (the precursor to today’s ICE) created an immigration clearinghouse, the Law Enforcement Support Center (LESC), to provide immigration-status information to local and state law-enforcement officials making just the sort of inquiries that SB 1070 anticipates.

The congressional ban on sanctuary laws was widely ignored, including in several Arizona cities. It was in part to reaffirm the congressional mandate to share and seek immigration information that the Arizona legislature passed SB 1070. But in making inquiries under the federal immigration laws, law-enforcement officials — whether local or federal — inevitably run the risk of asking questions of a legal alien or a U.S. citizen. Such a possibility had never been deemed a valid reason to invalidate immigration enforcement, until Judge Bolton’s opinion. When ICE agents investigate a worksite suspected of employing illegal aliens, some of the workers questioned about their status — or even all of them — may be legal residents of the U.S. Ditto any other federal immigration-enforcement action, whether in a drug safe house or at the border. The only way to guarantee that legal aliens are never asked to present their immigration papers is to suspend immigration enforcement entirely. (The same possibility of stopping innocent people applies to law enforcement generally; that possibility has also never been held to invalidate the police investigative power.) And if Congress intended to create such a blanket ban on asking legal aliens for proof of legal residency, it could have canceled the 1941 law requiring aliens to carry their certificate of alien registration. Such a requirement makes sense only on the assumption that legal aliens will upon occasion be asked to prove their legal status.