Wednesday, July 28, 2010

You Have Got To Be Kidding - Arizona's Law Gutted By Federal Judge

Federal judge Susan Bolton has accepted the Obama DOJ argument that Arizona's law regarding illegal aliens is preempted by federal law. She has, for all practical purposes, wholly gutted the Arizona law with respect to illegal aliens. (You can view the Court's Order here) And in doing so, the judge has realized my worst fears. When I analyzed the federal law suit several weeks ago, I wrote:

Invoking preemption in the present context is a dangerous game indeed. It is critically important to note that the Arizona law is little more than a codification of federal law as regards illegal aliens, . . . Thus the DOJ's argument must be that any state laws predicated on the status of an individual as a citizen or an illegal alien are preempted by federal law.

Think about that for a moment. If the DOJ wins this lawsuit, only the federal government will be able to enforce laws based on illegal aliens. We will become, in essence, a sanctuary country with states, for all intents and purposes, constitutionally prevented from inquiring into the citizenship status of people within their states. As a nation, our ability to address the problems of illegal aliens, already bad now, would be compounded exponentially.

That is now where we stand today. This from Legal Insurrection confirms my assessment:

States have been left helpless to deal with the anarchy created by the failure of the federal government to enforce border security. Whereas yesterday it was unclear how far states (such as Rhode Island) could go, today states are powerless.

The inability of a state to implement a policy of checking the immigration status even of people already under arrest for some other crime is remarkable.

We are in serious trouble. True, what the judge issued today was a Temporary Restraining Order and not a final judgment. But based on the Judge's reasoning, I see no reason to suspect that she will rule otherwise after a full hearing. Let's get that over with and get this thing up to the Supreme Court.

Update: Several people have weighed in with good legal analyses of the Judge's order, and I can't improve upon them. See Andrew McCarthy, Peter Kirsanow, and Mark Levin.

Take Away Question: Why the hell is our federal government siding with illegal aliens?


suek said...

Is that the route it will take? Direct from this judge to the SC? No regional court inbetween?

I do have to say - from your analysis and that of Fox News' legal analyst, I'm wondering if this Judge may have deliberately done this so that she wouldn't be the naysayer - while fully anticipating being overturned. If so, I'd assume there's some other game afoot.

SouthernRoots said...

The Federal line is, basically, "if Arizona turns over all these illegals to us, we'll be overwhelmed because we don't have the resources to enforce this law".

The judge apparently agreed - just saying you don't the resources to enforce a law is reason enough to vacate the law.

GW said...

Suek - no, its not direct to the Supreme Court. Once a final order is entered, it will make a short stop at the 9th Circuit that will issue an opinion upholding the lower court. I would be amazed if the 9th Circuit, as liberal as it is, would do anything else. At any rate, then it will go to the Supreme Court.

SouthernRoots - I addressed that argument in my original post three weeks ago when I analyzed the complaint. As I pointed out, that has never been a justification for preemption. McCarthy makes the same point, that the judge has confused whether Arizonas law would conflict with the law as written (it does not) as opposed to the analysis adopted by the Judge, that the law would conflict with how the federal government wants to apply - or not apply - the law. The latter should be meaningless in a preemption analysis. That said, I guess the new answer to that question all boils down to which side of the bed Justice Kennedy wakes up on in about two years time.