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To get back to JohnnyD's Q, Mark Levin argues that Judge Bolton reached a pre-determined decision. I know, I know, Levin is biased. Aren't we all?
He says that the Judge stated the correct legal standard, then ignored it and applied the test in a way completely divorced from the facts in the case.
First, she stated correctly that a facial challenge seeking a preliminary injunction requires the plaintiff (Federal Gov.) to demonstrate that the Arizona law can never be applied in a constitutional fashion. The test cannot be met with hypothetical argument--yet that is exactly what she relied on in her ruling, that the AZ law will impose an impermissible burden on law enforcement. She does not provide any empirical basis to support her conclusion--only pure supposition.
She cites a Supreme Court case "U.S. vs Salerno" where she notes: a facial challenge must fail where a statute has a plainly legitimate sweep." And in deciding a facial challenge, courts "must be careful not to go beyond the statute's facial requirements and speculate about 'hypothetical' or imagionary cases." Then she doesn't even attempt to analyze the provisions she overturns except for one she upheld. She doesn't distinguish the facial challenge from an as-applied challenge--at one point engaging in the hypothetical example of a potential unfair burden on a legal alien failing to have a dog on a leash fearing that he might be detained and subject to an impermissible burden for not carrying his papers. But the test is that it actually has to happen, not that it might happen. She also worries that increasing the time one is detained while his status is being checked might be unconstitutional--again, pure speculation, and contrary to what the First Circuit Court of Appeals already decided--such delay is permissible when there is reasonable suspicion. She largely ignores the Arizona Statute's saying that law enforcement officers can only confirm legal status where there is reaonable suspicion that the person is here illegally.
She violates another Supreme Court decision in "Hines vs. Davidowitz" where a Pennsylvania law was struck down because it put in place its own immigration law. The Hines Court concluded that a State law is invalid when it is an "obstacle to the accomplishment and execution of the full purposes and objectives of Congress." The AZ statute does not create an entire new law, but merely complements the Federal statutes. If anything, Hines supports AZ.
Bolton does not provide substantive analysis of the high standards required for a successful facial challenge. She thinks certain events or difficulties will occur and substitutes those thoughts for empirical evidence. AZ doesn't create any new or added Federal responsibilities. It doesn't establish any new or inconsistent obligations on legal or illegal aliens, and doesn't create any new or extra forms, procedures, or other obligations for aliens.
Respecting preemption, the substantive core of the Federal Government's case, Bolton shows no evidence to conclude that AZ is likely to fail on inquiring into the legal status, or that it will impermissibly interfere with the Federal Government's allocation of resources. AZ isn't requiring the Fed. Gov. to do anything. The Federal Government can choose not to take Arizona's calls. Nor does AZ preempt Federal law. It does not create a new regime. Actually, longstanding Federal Law practice encourages states to assist in enforcing Federal immigration law.
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