Posted on 07/31/2010 11:37:27 AM PDT by Congressman Billybob
It’s been thirty years, and I still miss the classroom. I taught American Political Theory to mostly seniors, Pre-Law or Political Science majors, that long ago. If any of them had submitted a paper as ill-thought-out as Judge Susan Bolton’s decision on the Arizona immigration law, I’d have given them an F, and made them rewrite it from scratch. Here’s why:
The largest point is that this US District Judge ignored the very case that was presented to her for decision. The federal complaint attacked the Arizona law for only one general flaw. It claimed that the state law preempted federal law, and was therefore unconstitutional.
It is grossly improper for any judge in any case to go outside the pleadings and decide the case on different grounds, and even worse, on non-existent evidence, than was presented in the courtroom.
I’ve seen this sort of behavior at this level, just once before in 40 years at the bar. I had a case in federal court in D.C. asking Judge Stanley Sporkin to enforce the 27th Amendment. That was called the Madison Amendment because James Madison wrote it as part of the Bill of Rights in 1789. But it was not declared ratified by Congress until 1992.
Judge Sporkin did not want to enforce the Amendment against the current Congress. His way of avoiding that was a rambling discourse on congressional corruption, which he had witnessed as an intern, 30 years before. In his decision he wrote that he saw Members of Congress accept cash in plain brown envelopes.
There were three fatal problems with his decision. The pleadings said nothing about corruption in Congress. No one presented any evidence on that subject. Lastly, what any judge pulls out of his/her personal memory is not evidence presented in court and subject to cross examination.
The Court of Appeals did not deal with Judge Sporkin’s non-judicial decision openly, by throwing it out. It tap-danced around his errors by ignoring his opinion and writing a brand-new decision on different grounds. In the case of Judge Bolton’s non-judicial decision, not even that mild corrective is likely from the Court of Appeals.
This case goes next to the Ninth Circuit Court of Appeals in San Francisco. Not only is that the most reversed Circuit of all, it is reversed more often than all the other Appeals Courts taken together. So, it is likely the next decision on the Arizona law will be just as bad as the first one. The final word, however, will be in the US Supreme Court, where one can hope that five Justices will take the Constitution seriously.
Here are the provisions Judge Bolton said were preempted by federal law: to determine the immigration status of someone already lawfully stopped, if there is reasonable suspicion they are illegal. (This is identical to federal law.) To make it a crime not to carry alien registration papers. (Also, identical to federal law.) To make it a crime for illegal aliens to work in Arizona. (It is already illegal for illegals to work anywhere in the US, including Arizona.) To authorize the arrest of anyone where there is probable cause to believe they have committed a deportable offense. (Again, identical to federal law.)
The court then analyses the Arizona law, point by point. Anyone arrested, or legally detained, under the state law “shall be presumed NOT to be an illegal alien,” if they have valid state, tribal, or federal ID papers with them. The court then ignores the language of the law, and reads it to mean that EVERYONE’s status must be checked. Then the court determines that this false reading would overburden the status-checking offices of the federal government.
The court does not note the irony in the federal argument that even legitimate requests for alien identification would “overburden” federal officials. To note the irony would prevent the court from ruling against a state law, because the federal government is incompetent at its chosen tasks.
The court never deals with the point that state and local authorities do have the authority to enforce federal immigration determinations, as long as they do not exceed the requirements of federal law. Several federal decisions around the country approve of precisely this result.
The court then offers as proof of the preemption of state law, that the federal government has been extremely lax in enforcement of laws against employment of illegals, and the use of false documents by illegals. The idea that federal incompetence requires all state and local governments to match its incompetence, has no support in prior cases.
- 30 -
About the Author: John Armor practiced before the Supreme Court for 33 years. John_Armor@aya,yale.edu His latest book, to appear in September, is on Thomas Paine. www.TheseAreTheTimes.us
- 30 -
John / Billybob
How long can the 9th sit on it, knowing their decision will ultimately be reversed? Is the original decision in effect while Arizona waits?
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.
This idiot woman shouldn't even have heard this case. It should have gone straight to SCOTUS.
John / Billybob
save
Was the State of Arizona a party to this suit? I must have missed the words "Original Jurisdiction" in my copy of the Constitution. Perhaps I have an outdated one.
What do you think of the move to disbar Kagan?
Just who does she think she is? Charlie Rangel?
That is, she is talking psycho-babble explaining the unexplainable, and using enough words to sound like she knows what she is talking about. At least she thinks that she sounds intelligent.
Sorry meant to say I know I DIDN’T miss the words “Original Jurisdiction”. They’re right there, plain as day. What kind of legal sophistry was used to keep this out of SCOTUS?
Ping: Screwing the law???
Just because someone is a judge does not mean they know the law.
this is french outcome decision making. She wanted a result regardless of what the law and constitution state.
Good analysis. It might be useful if you could, separately, also comment on Ms. Kagan’s “qualifications” and send them to deluded republican senators who think she is merely “philosophically different” but qualified for the supreme court. One or more of them seem to be non-lawyers who assume that if you were president of Harvard Law School and solicitor general therefore you must be qualified for the supreme court, a preposterous contention, and a dangererous one.
Bolton is obviously not very smart when it comes to the law. Apparently, she also “decided” that the Federal requirement stating that immigrants must carry their papers with them at all times is “unconstitutional” in her fantasyland.
IRRC there was similar reasoning in another case regarding the children of Illegals. Plyler? Something to the effect that since the law had been ignored for so long it was unreasonable to start enforcing it now.
The whole thing is nothing more than make them ALL voters, er, citizens, was just a matter of time until the truth came out, blame it on some wee little jerk sitting off in a wee little office. This don’t fly, done by the big little jerk himself..
Four states were suing each other to decide who would get the state estate taxes.
John / Billybob
SSSHHHHHHHHHHH! or she'll be the next supreme court nominee
Ping!
What I thought they should have done is summon a 3 Judge Court which is the trial Judge who drew the case, a Circuit Court of Appeals Judge and they pick a District Court Judge from the same state. Then the appeal goes straight to the US Supreme Court. I thought this was a must for challenges to a state statutory scheme.
Secondly, there is no mention (that I could see) in Judge Bolton’s ruling of the 9th and 10th amendments concerning State’s sovereignty.
Bolton arrived in the courtroom with her decision (whether on her own initiative, or on orders issued by :others"), and then she had to make up some blather about why her decision was "correct".
We see this same symptom ten years later in the LA Times and Washington Post and Clinton Administration v. Free Republic case. Morrow already had her orders, so she made up some BS about "four points", and ten years later, people are STILL posting full text articles all over the Interwebs, because the Clinton White House-crafted "decision" was tailored to smack down Free Republic.
Hell, I remember reading a full-text LA Times article on the FR "decision" posted on a Lefty website, laughing at FR while they flouted the very "bill of attainder" that apparently only applied to Free Republic...
Perhaps we need a judicial review device to deal with blatant a priori decisions like this.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.