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.
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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
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To answer your question, oral argument is scheduled for November 1. Briefs are due in August.
To answer a question not presented by the OP, "this case" is just the request for a preliminary injunction. The District Court still has to decide the case on the merits. And at least one of the "deficiencies" cited in the decision pertaining to the injunction might be corrected. That is the part of the law that is read as mandating 100% of arrests to be submitted for immigration check, the second sentence of Section 2(B): "Any person who is arrested shall have the person's immigration status determined before the person is released."
One has to wonder if Judge Bolton read the text of the law.
Why would she have to do that?
(d) Identification of criminal aliens(1) The Attorney General shall devise and implement a system—(A) to make available, daily (on a 24-hour basis), to Federal, State, and local authorities the investigative resources of the Service to determine whether individuals arrested by such authorities for aggravated felonies are aliens;
TITLE 8 > CHAPTER 12 > SUBCHAPTER II > Part VIII > § 1324(c) (Bringing in and harboring certain aliens) says:
c) Authority to arrestNo officer or person shall have authority to make any arrests for a violation of any provision of this section except officers and employees of the Service designated by the Attorney General, either individually or as a member of a class, and all other officers whose duty it is to enforce criminal laws.
TITLE 8 > CHAPTER 12 > SUBCHAPTER II > Part V > § 1252c (§ 1252c. Authorizing State and local law enforcement officials to arrest and detain certain illegal aliens) says:
(a) In generalNotwithstanding any other provision of law, to the extent permitted by relevant State and local law, State and local law enforcement officials are authorized to arrest and detain an individual who—(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction,but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual and only for such period of time as may be required for the Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.(b) CooperationThe Attorney General shall cooperate with the States to assure that information in the control of the Attorney General, including information in the National Crime Information Center, that would assist State and local law enforcement officials in carrying out duties under subsection (a) of this section is made available to such officials.
-PJ
What's particularly concerning is the quality of that "blather".
Thanks as always for your astute postings.
Don’t you think this was just a case of “damned if you do, damned if you don’t”, so Judge Bolton just punted to get it out of her court? Sort of an “above my pay grade” sort of thing?
Sure looks to me like she decided she’d rather live with a reversal than make a decision that would make the President and AG look bad.
==If you read it closely, there is a key “and”==
There is also a key “comma” in the sentence. There are multiple entities, all being separated by commas. “in the scenario that involves an Ambassador “AND” a state” , you’re leaving out the separation declared by the comma. Dropping the other entities out, the sentence becomes;
“In all Cases affecting those in which a State shall be Party, the supreme Court shall have original Jurisdiction.”
It would seem to me that that “separating comma,” is quite important to the meaning of the sentence.
It's GOOD to be a Life-Time Appointed Federal Black-Robe.
That way, you don't have to be concerned with the insignificant objections of benighted peasants like "moehoward" or "an amused spectator".
Actually it does. Article 3, Section 2: 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.
Seems pretty clear to me. SCOTUS should have heard this directly.
L
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".
Of course the fix was in; the AG would not have filed the case if it had not already been fixed.
Let us repeat that, the case would not have been filed in that court by the US Attornay General if the decision had not already been ascertained. This by virtue of that particular Judge, and prearranged argument.
Sad how many accept this, even here on FR, how many legal decisions in the US today are not prearranged agenda.
There is also a much more insidious connection which virtually no one wants to talk about. Susan Bolton is from Philadelphia, research her.
You missed a comma. Boolean construction doesn’t apply.
Lord help us if Bolton gets to take another whack at it.
Methinks she was more worried about her chances for a promotion than the Constitution.
If the Founders meant what you say why didn't they simply write "If a case has Ambassadors, public Ministers and Consuls and a State the Supreme Court has jurisdiction"?
No, those are all separate ideas and only a Lawyer could read it otherwise.
Please explain.
I think she's thrown her best shot at it. She had plenty of time to ponder the rationale, etc. The decision on the merits is likely to be a very close parallel to the order granting the motion for injunctive relief.
Docket for CV 10-1413-PHX-SRB -- I could not discern any sort of schedule for a decision on the merits. Even the motions for leave to file amicus are just hanging there.
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