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Judge Susan Bolton has to get credit for her cheekiness. She took a matter of profound national concern and injected an element of hilarity into it.
As gloriously ridiculous as a classic Monty Python skit, the federal judge’s decision blocking Arizona’s immigration law is an appropriate first volley in the legal war over the law. If our immigration system is to be defined by a judicially sanctioned lawlessness, we might as well dispense with the pretense.
Acting in keeping with federal law, court precedent, and a Department of Justice legal memorandum (not to mention common sense), Arizona said its law-enforcement officers would henceforth check the legal status of suspected illegal immigrants during the course of a lawful stop or arrest. To conclude that the law likely will be struck down for “preempting” federal regulations, Judge Bolton had to engage in complicated judicial gymnastics, which she nailed with all the skill of a Mary Lou Retton in robes.
Taking her cues from the Obama administration’s suit against the law, Judge Bolton worried that too many legal aliens would be caught up in Arizona’s dragnet. Of course, these aliens are already required by federal law to carry proof of their legal status. But let’s put that aside (as Judge Bolton does). She claims that too many legal aliens without ready access to documents proving their lawful entry into the U.S. will be put at risk, including visitors from visa-waiver countries.
For the sake of argument, let’s assume that visitors from countries like Norway and Australia are flooding into the border areas of Arizona. And let’s assume they engage in recklessly illegal conduct, daring cops to stop and arrest them. And let’s assume they exhibit all the behaviors associated with illegal immigrants. How could such a visitor escape the dreaded fate awaiting him when an officer asks about his legal status? Perhaps by producing a passport stamped with the duration of his stay, possessed by every visitor from a visa-waiver country?
Judge Bolton piles speculation atop implausible readings of the law. Say a legal alien is arrested and his release is delayed by a check on his status. Let’s put aside (as Judge Bolton does) that on average it takes the staff manning the federal database set up for such checks 70 minutes to get to an inquiry and a mere 11 minutes to answer it. Judge Bolton declares that any delay amounts to exposing legal aliens to “the possibility of inquisitorial practices and police surveillance.”
This is a tautology dressed up with scare words. It’s impossible as a matter of definition to get arrested without experiencing “police surveillance.” As for “inquisitorial practices,” blogger William A. Jacobson notes that “states already routinely run searches for a variety of statuses, including outstanding warrants, child support orders and non-immigration identity checks. Each of these checks potentially could delay release of an innocent person.”
When states want to check on someone’s immigration status, they do it with the aforementioned federal database. As a matter of law, the outfit running it must respond to all inquiries “seeking to verify or ascertain citizenship or immigration status . . . for any purpose authorized by law.” In writing this sweeping requirement, Congress did not make an exception for requests emanating from Arizona.
Too bad, says Judge Bolton. If the state finds too many suspected illegal immigrants, it might overburden the system. Let’s put aside (as Judge Bolton does) that the system already gets 1 million inquiries a year, that it has a theoretical capacity to process 1.5 million and that, as of now, Arizona only makes 80,000 inquiries annually, meaning even a drastic increase could be accommodated. If the federal government fears a surge from Arizona, couldn’t it add some positions to the 153 staffers currently assigned to the database? Think of it as stimulus.
But never mind. With emotions running high over the Arizona law, some comic relief is always welcome. Judge Bolton has provided it.
— Rich Lowry is editor of National Review. © 2010 by King Features Syndicate.