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David Coleman

David Coleman

Posted: August 12, 2010 10:55 AM

Federal District Court Judge Susan Bolton's decision in U.S. v. Arizona was a big win for the U. S. Department of Justice from a legal standpoint, and a bullet dodged by President Obama from a political standpoint. Perhaps of larger significance, the decision points to some important constitutional tensions that need to be recalled in a nation currently characterized by fractious Red states eager to embrace a power struggle with a Federal government controlled by, as they see it, Blue politicians.

This article first sets out some of the near-term procedural implications that flow from Judge Bolton's decision; then it appraises some of the legal bases chosen or ignored by Judge Bolton's opinion; and finally, it notes the historical seeds of tensions that could grow from (or be staunched by) the lawsuit if the Obama Administration plays its cards correctly.

Why an injunction and a "preliminary" one at that?

The decision issued by Judge Susan Bolton ordered only a "preliminary" injunction that halted implementation of the most noxious and controversial provisions of Arizona's SB 1070. To understand the legal future of a lawsuit that has begun with issuance of a "preliminary injunction," an explanation (as if given in the first person by Judge Bolton) might be something like this:

I still have to hear the evidence in the case but I think the DOJ is probably right and the Federal government will prevail in this case. In the mean time I don't want this law to take effect until I can hear the whole case with evidence and legal arguments. That may take months to hear, research and decide upon. Arizona can still present evidence and argument but I think when the case is over they probably won't be able to convince me that it is constitutional. But if I wait to make a decision for the months it may take, people will have suffered harm they probably should not have to suffer.

There will be a trial and appeals. But figuratively, this win in the first quarter means the field is tilted at a big angle in favor of DOJ and against Arizona. It will be an uphill battle for Arizona through the "final" ruling by the District judge. The incline of that legal hill will be even greater in the Ninth Circuit Court of Appeal, thought to be more liberal than many other Federal circuit courts of Appeal, and preternaturally expected to look with approval on the decisions of lower court judges (which appellate judges frequently recall they once were.)

Some metrics drawn from the football metaphors that crept into the last paragraph might help to convey more clearly the magnitude of Judge Bolton's ruling. If a lawsuit was scored like a football game, the score might be of this magnitude: United States 48, Arizona 6.

How -- according to the Justice Department and Judge Bolton --is Arizona running afoul of the Constitution?

SB 1070 provided that for every arrest a police officer must undertake a mandatory investigation. Further, SB 1070 provided that an immigration inquiry would only occur during a detention if and when the officer had a suspicion that the person detained may not be a citizen or, if an alien, did not have sufficiently convincing proof of lawful presence in the country. Even for those persons merely detained (for a brief investigation or question by an officer), there would ensue an immigration ("your papers please") investigation if the detaining officer was suspicious of the person's immigration status. And when that happened, those detentions (like the full arrest) would be "prolonged" and for that reason constitutionally unreasonable.

A "prolonged" detention is lawyer speak for an officer in the field holding on to someone after the reason that precipitated the encounter has passed. ["No you are still not free to go. I have to check your papers and status first."] In other words, the Arizona legislature passed a law that urged (and, for arrests, indeed required) police officers to engage in a constitutionally forbidden practice of a prolonged "seizure" of detained suspects instead of letting them go on their way when the reason for the initial detention ended. The Phoenix Suns all star guard, Steve Nash and Senator John McCain would need proof of legal authority to be in the U.S. if arrested (e.g. cited and released) for jaywalking. (And that statement is true independent of the fact that Nash is Canadian and McCain was born in the Panama Canal Zone as we learned in the last election cycle.)

Ironically, this automatic nature -- and the attendant prolonged time for the immigration investigation phase -- turned out to be SB 1070's greatest constitutional vulnerability. Judge Bolton concluded the collateral constitutional damage that would be inflicted by the Arizona legislature's orders to its police officers was too great:

"Under [SB 1070] all arrestees will be required to prove their immigration status to the satisfaction of state authorities, thus increasing the intrusion of police presence into the lives of legally-present aliens (and even United States citizens), who will necessarily be swept up by this requirement."

Two things about Judge's Bolton's legal reasoning stand out. First, she artfully focused on the harm SB 1070 would impose on U.S. citizens and legally-present aliens instead of harm that might befall illegal aliens or persons with problematic claims to being documented. Judge Bolton's opinion never ran off that track into heat provoking arguments about race and language-based stereotypes that so many commentators believed the bill would engender. Second, her legal analysis completely tracked and adopted the Supremacy Clause analysis contained in the brief and arguments submitted by DOJ.

It is interesting that the brief from the Department of Justice focused almost exclusively on the Supremacy Clause issue. It did not, as one might expect from a Department whose mission is to confront racial or ethnic discrimination, address those issues. Having won with Supremacy Clause issues, the decision to skirt potential discrimination issues seems prescient and astute.

Opponents of SB 1070 (who condemn it as a bill legitimatizing racial profiling) are possibly disappointed by the absence -- in the arguments of the DOJ, and in turn in the opinion of Judge Bolton - to racial or ethnic discrimination in policing that the law might generate. Passionate advocates on each side of the debate will have to wait for another vehicle. For this result alone, Judge Bolton's approach deserves respect for her legal reasoning, praise for her intellect and courage as judge, and admiration for her ability to avoid adding fuel anybody's fire.

Yes, Arizona SB 1070 was about job seekers as well as police encounters

Congress has primarily exercised its authority over immigration through laws aimed at employers, and only minimally directed at employment seekers. Federal law prescribes a maze of mandates for employers to check identification and cross check with numerous Federal law enforcement and immigration control agencies. Judge Bolton observed that the United States Congress (the political institution in which Arizona's senator, John McCain, once led on this issue) purposefully and deliberately rejected immigration control measures which focus on job seeking applicants. The job seeker's only duty is to not lie if queried about citizenship status when applying for a job.

Put differently, the national decision of our elected legislators (and the Republican and Democrat Presidents who have signed immigration legislation) has been that employers, not job seekers, should bear the burden of insuring compliance with immigration policy in the workplace. Arizona's legislators - under the guise of state's rights - are not at liberty to decide that Congress made the wrong decision and should have attacked the issue in a different way. It was a decision for Congress to make - or not make. Congress intended that it be done a specific way; not that it could be done one way in Arizona (and maybe another in New Mexico, or differently in Vermont.) That assignment of power to the Federal legislative body - and not to that of an individual state -- to make that policy choice is what the Supremacy Clause is all about.

Judge Bolton's opinion noted that in employment matters, state law typically occupies the field with little Federal intrusion beyond certain specialized topics - such as labor relations or immigration control where the Federal government wields powers that must be uniform. But with regard to immigration control, the DOJ argued and Judge Bolton agreed, the United States Congress had deliberately chosen to focus criminal sanctions only on employers and not on job seekers. Arizona SB 1070 placed criminal penalties on job seekers and this was not a policy choice for them to make under the Federal constitution's supremacy clause.

How Arizona arrogantly jumped the line of other security and law enforcement interests.

Another offending flaw in SB 1070 that DOJ lawyers emphasized, and Judge Bolton accepted, was the impact the law would have on Federal law enforcement and immigration control agencies. DOJ filed with the District Court affidavits from top law enforcement administrators of agencies like DHS and the FBI in Arizona. The affidavits supported the DOJ argument that enforcement of SB 1070 would mean Federal immigration and law enforcement personnel and computer systems would be burdened by responding to a tsunami of immigration status inquiries from local Arizona law enforcement.

Those calls from the patrol car or from the booking area of a local city jail in Arizona have to be answered and processed by someone. Employees of Federal agencies will have to respond in real time to give the information requested by officers in the midst of detentions and arrests.

On this argument Judge Bolton's analysis evoked visions of a Homeland Security or customs agent placing "on hold" a call from a Sky Marshall seeking information about the immigration status of a passenger on a jet bound for the United States while she responded to a request for information from an officer detaining a driver of pick-up truck filled with garden tools on a street in Arizona.

Arizona police officers would be demanding attention and thereby diminishing resources the Federal government was trying to focus on more serious threats from outside our borders. Federal resources to meet that challenge would be reduced while tending to Arizona's political hissy-fit over illegal immigration.

How a dangerous political challenge was met and is being rebuffed.

At a fundamental level SB 1070 was nothing more than a states' rights power play by the Arizona legislators and governor. In retrospect it may have been nothing more than a bluff, known by those who received legal advice before enactment to be unlikely to remain standing. Perhaps they surmised the Federal government would not want to bring a challenge (or it would hurt the Administration if they did so.) Thankfully, DOJ called Arizona's bluff.

The DOJ, led by Attorney General Eric Holder, and in particular the Civil Division legal team fielded by Assistant Attorney General Tony West, should be complimented for advancing a precise Supremacy Clause argument and winning a victory on grounds that would not heat up the rhetoric of racial and ethnic stereotyping. Judge Bolton should be commended for unblinkingly pointing out constitutional flaws written into the procedures enacted by SB 1070. Arizona's political vigilantes rode into a legal box canyon they devised through using a combustible mix of political and legal bluster; the DOJ rounded them up and restored constitutional law and order.

How the lawsuit can be a model for defusing incipient states' rights rebellions that challenge the Federal government (a.k.a. Obama administration?)

President Obama has famously proclaimed admiration for certain of his Republican predecessors. Two of them come to mind in crises generated by tension between Federal government prerogatives and "states rights." One is, of course, the 19th century President from Illinois who fought to hold a Federal government together in the face of a secessionist challenge by 13 southern states. The other was a 20th century president, Dwight Eisenhower, who sent troops to Little Rock to enforce orders of Federal courts when it was unpopular to do so with state officials in Arkansas, or for that matter throughout what were then southern (but are now strongly "Red") states.

Americans should keep in mind that in the past, disgruntled states -- not unlike Arizona in today's immigration kerfuffle -- insisted on their "rights" even when those rights conflicted with Federal law. Then, as now, states wanted to enforce (or not enforce) laws of their choosing without regard to their duty to obey the constitution and its allocation of governmental powers. Those states' rights tensions with the Federal government - as ugly as their history has been - are surfacing in the American polity now in virulent forms.

Hopefully, President Obama will consider some of that historical perspective as he decides to fight or acquiesce to future challenges of the kind embodied by the passage of Arizona SB 1070. As a student of Doris Kearns Goodwin's writings on Lincoln, he should remember Lincoln's genius was not simply in assembling a "team of rivals." It was in assembling them, discerning which team members gave the wisest and most courageous advice, and then encouraging that team member to provide leadership.

President Obama may have found "his Grant" in a cabinet of rivals; he already has honorific "general" rank and his name is Holder.

A more extensive version of this article first appeared in Truthdig under the title: "Why Arizona Matters"