Judge Bolton nevertheless deems the possibility that legal aliens might be asked to establish their status in Arizona under SB 1070 a sufficiently large burden to create an unconstitutional conflict with federal immigration authority. Never mind that without SB 1070, Arizona officers already had the authority to make such inquiries. SB 1070 makes such inquiries more likely, says the judge, and that increased likelihood somehow meets the legal standard for finding that a state law is preempted by federal authority. (A state law unconstitutionally conflicts with federal if either “compliance with both State and federal law is impossible, or . . . the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”)
As for the existence of the federally operated Law Enforcement Support Center clearinghouse, which presupposes just the sort of local immigration inquiries that the Arizona law contemplates, Judge Bolton asserts that because it is “currently dedicated in part to national security objectives” (emphasis added), the inquiries that would be coming from Arizona under SB 1070 would “divert it from its other responsibilities.” But every non-national-security-related inquiry is a diversion from national-security inquiries, just as national-security inquiries are a diversion from non-national-security inquiries. If Congress wanted LESC to entertain only national-security inquiries, it could so mandate. Until Congress does, however, there is nothing unconstitutional about a local officer sending a non-national-security inquiry to LESC. If the volume of inquiries eventually taxes LESC’s resources, the executive branch should request more funding. LESC was not established with a ceiling on the number of inquiries it is authorized to entertain.
The ruling’s cursory treatment
of the section of SB 1070 that adopts federal immigration-documentation requirements is arguably the low point of the opinion. But a strong case could also be made for the preliminary-injunction analysis. A plaintiff seeking a preliminary injunction must meet a three-pronged test: He must establish that he will suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. A typical case of “irreparable harm” warranting an injunction is the imminent bulldozing of a landmark building, or the administration of the death penalty. In such situations, no amount of monetary compensation could remedy the loss and restore the plaintiff to the status quo ante if the enjoined action were later to be found illegal.
By preliminarily enjoining SB 1070, Judge Bolton is implicitly declaring that even one day of its operation would cause the United States irreparable harm that could not be otherwise remedied. But she is silent as to what that harm may be. If a host of legal aliens ended up being detained unconstitutionally, they could sue for damages — the conventional remedy for unlawful detention. Judge Bolton’s tour through the “balance of equities” and “public interest” prongs of the preliminary injunction test is equally superficial; she merely announces that allowing a state to enforce a law in violation of the Constitution’s supremacy clause is “neither equitable nor in the public interest.” No mention of Arizona’s interest in the rule of law; no mention of the burden that unimpeded illegal immigration is putting on the state’s schools, hospitals, and jails.
But it gets worse. The federal government asked Judge Bolton to enjoin SB 1070 before the statute even had a chance to operate. Such so-called “facial” challenges to a law are, in the words of the Supreme Court, “the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” The federal government didn’t even try to make that showing, nor did the judge require it. Had SB 1070 gone into effect and produced the constitutional Armageddon that its enemies predict — with legal aliens being stopped pretextually and hauled off to jail for hours or even days at a time, say — then there might have been an argument for an injunction. But we are being asked to believe that Arizona’s law-enforcement officers are incapable — “under any possible set of conditions,” in the Supreme Court’s language — of administering SB 1070 without producing a crisis of constitutional dimension.
In reality, the reason that the law had to be enjoined preemptively was that it would not have produced a widespread trampling of rights. The hysteria around SB 1070 would have been shown to be gratuitous. That hysteria is a smokescreen to distract attention away from the real threat posed by SB 1070: not to the federal government’s constitutional powers, not to legal aliens, but to the de facto amnesty that now prevails in most of the country. The Arizona law was already inducing illegal aliens to leave the state, according to news reports, even before it went into operation, demonstrating that immigration-law enforcement can work simply by creating a deterrent to illegal entry and presence. Illegal aliens are virtually absent from the Justice Department’s brief or from Judge Bolton’s opinion, but their continued violation of American law is the only thing that would have been at odds with SB 1070.
– Heather Mac Donald is a contributing editor to the Manhattan Institute’s City Journal and a co-author of The Immigration Solution.