“Judges are but men, and are swayed like other men by vehement prejudices. This is corruption in reality, give it whatever other name you please.” — David Dudley Field
For the past few days, I have been studying the opinion of Judge Susan Bolton granting a preliminary injunction to block implementation of certain parts of the new Arizona immigration statute. I have to say that Judge Bolton’s reasoning just evades me.
Judge Bolton correctly observes that “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”
Also, she correctly states that courts “must be careful not to go beyond the statute’s facial requirements and speculate about ‘hypothetical’ or ‘imaginary’ cases.” Since the federal government alleged that the Arizona statute is unconstitutional on its face, these are the correct standards.
However, in analyzing the prime portion of the statute that requires police to verify the immigration status of people otherwise lawfully detained if there is a reason to think that they might be illegal aliens, she immediately sets about contriving imaginary and hypothetical cases.
She states two main reasons for preventing enforcement of this provision. First, she thinks that this unlawfully would restrict the liberty of legal aliens since they would be detained while the check is made.
Really? Have you ever been stopped for a traffic violation and detained while your plates and license are run, even though there is no reasonable basis to think you have violated any law? If she really means that it is unlawful to detain a person when there is a reasonable basis to think they have violated the law, then enforcement of the immigration laws, and any other law for that matter, is wholly impossible.
Second, Judge Bolton finds that verifying the immigration status of those detained would place an undue burden on federal agencies. Apparently, she thinks that the executive branch is not obligated to execute the laws of the United States. To reach this conclusion, she must think that the executive branch can pick and choose what laws it will and will not enforce. I guess my civics teacher had that whole “three branches of government” thing wrong.
Judge Bolton’s opinion employs a similar lack of logic in enjoining enforcement of other provisions of the Arizona statute. Obviously, her point was to reach the conclusion that her prejudices dictated, rather that preserving, protecting and defending the Constitution and laws of the United States. Although contemptible, I am sorry to report that this kind of conduct is all too common and has been since the 1930s.
It certainly is true that the immigration laws of this country need to be examined. They may restrict too tightly the number of foreigners that may lawfully immigrate. That, however, is a subject for public debate and action by the Congress.
The point here is that ignoring laws, whether because of the failure or refusal of the executive branch to enforce them or because of the sophistry of a judge, is bad policy of the highest degree.
Enforce the laws. If the people do not like the results, the Constitution is clear on how to change the law.
Rick Akin is an attorney practicing in Steamboat Springs, Denver and Austin, Texas, a former member of the Pilot & Today Editorial Board, and is vice chairman of The Steamboat Institute. He holds a Bachelor of the Arts in Letters from the University of Oklahoma and a doctorate from the University of Texas.