Commentary on the judge’s decision to stop parts of SB 1070 from going into effectby Hugh Holub on Jul. 29, 2010, under border issues, politics, SB 1070
Reading the 36 page opinion of federal judge Susan Bolton where she enjoined the heart of SB 1070 from going into effect July 29th, one can only be reminded that us lawyers speak a different language than the rest of the world.
Bolton’s opinion is meticulously constructed in anticipation of the obvious appeals that will be taken all the way to the US Supreme Court.
One can guess that supporters of SB 1070 think they will fare much better in front of a conservative dominated tribunal than in a Phoenix federal court house. They may be very wrong in that assumption that conservative political philosophy will trump the legal precedents involved.
The core of Judge Bolton’s decision revolves around federal pre-emption issues. There are lot of things the federal government has reserved jurisdiction over and trumps states on. This goes to the fundamental structure of the country which has an over-arching federal government so that every state does not have its own commerce laws, immigration laws, its own armies and navies, and currency.
We are not 50 separate sovereign countries here, though there are many who believe states rights are more superior than federal law. The Civil War should have settled that.
The Bolton decision is not long on political philosophy, but very detailed about the intricacies of federal immigration law and preemption. This is exactly the path for the US Supreme Court to uphold Bolton.
To boil the decision down to its core element, Bolton is saying the federal government interests and control over immigration enforcement supersedes state interests…even if it is manifest the federal government is not doing as good a job as the state interests would like.
If one of the goals of SB 1070 was to prod the federal government into taking more effective steps to stop the flow of illegal immigrants into Arizona, it is working just the opposite.
Bolton discusses the conflict of resource allocation within the federal government. Obviously SB 1070 was intended to bury the federal government with illegal aliens to deport. Bolton basically said Arizona cannot hijack federal resource allocations. If the feds want to concentrate immigration status verification to catch terrorists instead of lettuce pickers, that is a federal prerogative. Period.
Bolton also focuseson the burdens SB 1070 could place on lawfully present aliens. Didn’t read about that issue much in the debates of Sb 1070, did you? But a fundamental issue in the litigation.
Another reason Bolton was able to stomp on SB 1070 was it was poorly written. Her opinion dissects the problems between this section conflicting with that section of the state law. Think of Bolton’s opinion as the ultimate literary criticism of the legal team that drafted SB 1070.
A key thing to understand about the Bolton decision is that granting injunctions of what she described as “facial” challenges to a state law is exceedingly rare. The plaintiffs had to convince her there was a very high probability they would prevail at trial on the illegality of SB 1070, and that irreparable harm would happen if she did not enjoin the law.
The irreparable harm saw was to the federal government’s power and authority to allocate its resources and make its own decisions about immigration issues.
I’d guess that the probability of Bolton’s decision and injunction being upheld by the US Supreme Court is exceedingly high—in the 95% range.