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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The 1st paragraph is a grant of judicial power, in the aggregate. The 2nd paragraph carves that judicial power into original jurisdiction (which means to try the case), and appellate jurisdiction.
There are few because SCOTUS and Congress colluded to provide joint original jurisdiction, between SCOTUS and lower courts. SCOTUS has the option to take original jurisdiction in any case in which a state is a party (but see limited subject matter jurisdiction in the 1st paragraph).
Hat tip to Mr Rogers, see http://law.onecle.com/constitution/article-3/32-original-jurisdiction.html
Thanks for the link. I think if I were Jan Brewer, I would appeal directly to the SC.
Thanks for your analysis. The state of Arizona tells the Federal Government that it will assist the Federal effort to enforce immigration laws. The Federal Government doesn’t want assistance because it would be a burden. Bolton worried about the burden to the poor helpless Federal Government. A couple of things here. First, these people accepted the job, and they must accept the burdens of that job. Second, is there any possibility that these fools will ever understand the burdens to the citizens because of presence of so many law breakers?
I'm of similar mind, that she should take a direct appeal. I'm pretty sure SCOTUS would decline, and that has to be factored into the calculus. SCOTUS is arrogant, with a capital "A," and would likely resent being put in the political spotlight, when Brewer can deflect the attention to the 9th Circuit.
If I was her, I'd also mobilize my state militia, and consider conscription into the national guard or state guard, and assert an armed force against entry other than through federal checkpoints.
I'd be acting to embarrass the crap out of the useless and corrupt federal government.
If the 9th overturns Bolton, it goes back to her court. Right?
Yes, but only to implement the order described by the 9th Circuit. That order can be just about anything, from "find more facts, then decide again," to "remove the injunction, period."
And keep in mind that the only thing before the 9th is the preliminary injunction enjoining Arizona from enforcing the mandatory effect of the law. The governor can, of course, make it an executive policy for the law enforcement to inquire about the immigration status for 100% of the people it develops reasonable suspicion of. In other words, she can implement by "executive order," rather than by legislation.
Doing so would produce additional facts that could undermine the grounds for much (if not all) of Bolton's decision. For example, ICE does not become overloaded with requests; legal aliens aren't unreasonably detained, etc.
It's hard to keep track of the full game -- news reports tend to isolate attention to small facets, and often to irrelevant facets.
That's what I thought. And with the 9th's propensity for going against 'the man', there's slightly better than even odds they'll overturn. imho.
On that second point regarding effect of the law. Since the Sanctuary policy provision stood, I can't see how practical application of the law is truly effected, regardless of which way the 9th goes. Aliens are still mandated to carry their papers, officers can still inquire about status as 1070 provided, "when practicable".
I guess that could all change if they ever get around to a decision on merits.
I don't understand why Arizona didn't challenge the federal courts jurisdiction in this matter.
Arizona ISN'T trying to make a rule for aliens to become citizens, or to act in a manner contrary to the federal government's authority to make a uniform rule of naturalization.
Arizona is simply doing it's civil duty in relation to the denizens of the State.
The power of naturalization, and not that of denization, being delegated to congress, and the power of denization not being prohibited to the states by the constitution, that power ought not to be considered as given to congress, but, on the contrary, as being reserved to the states. And as the right of denization did not make a citizen of an alien, but only placed him in a middle state, between the two, giving him local privileges only, which he was so far from being entitled to carry with him into another state, that he lost them by removing from the state giving them, the inconveniencies which might result from the indirect communication of the rights of naturalized citizens, by different modes of naturalization prevailing in the several states, could not be apprehended.
George Tucker
Interesting. Thanks.
This is NOT an original case. It is like the twelve or so cases that I took to the Supreme Court challenging state election laws. All of them began at the trial level, and in due course reached the Supreme Court.
John / Billybob
bttt
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