Well this is sure to draw scads of hyperbolic, ignorant, and/or legally inaccurate rants from conservative television and radio (and probably from Mike Ross, as he seems to tow the Republican line on this issue, even going so far as to embrace the lies and half-truths being spread about the legislation).
A federal judge has blocked one of the most controversial sections of a tough Arizona immigration law, granting a preliminary injunction Wednesday that prevents police from questioning people about their immigration status.
That provision required police to “make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested” if the officer has a reasonable suspicion that the person is in the United States illegally.
U.S. District Judge Susan Bolton’s ruling, in response to a motion filed by the federal government, came with scant hours to go before the law goes into effect.
She also blocked provisions of the law making it a crime to fail to apply for or carry alien registration papers or “for an unauthorized alien to solicit, apply for, or perform work,” and a provision “authorizing the warrantless arrest of a person” if there is reason to believe that person might be subject to deportation.
No matter what you might hear, the truth is that the ruling is very narrow and rests on solid legal footing specifically because of what Judge Bolton did not do; she refused to broadly enjoin the entire bill, focusing instead on the application of legal precedent to each part of the bill individually. To wit:
The court did not enjoin any sections of the bill which the plaintiffs had not specifically asked to be enjoined.
The Court notes that S.B. 1070 is not a freestanding statute; rather, it is an enactment of the Arizona Legislature that adds some new sections to the Arizona Revised Statutes (“A.R.S.”) and amends some preexisting sections. S.B. 1070 also contains a severability clause, providing that,
[i]f a provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.
S.B. 1070 § 12(A). Therefore, the Court cannot and will not enjoin S.B. 1070 in its entirety, as certain parties to lawsuits challenging the enactment have requested. The Court is obligated to consider S.B. 1070 on a section by section and provision by provision basis.
Likewise, the court was not willing to enjoin any provisions where the United States was unlikely to prevail at trial.
Applying the proper legal standards based upon well-established precedent, the Court finds that the United States is not likely to succeed on the merits in showing that the following provisions of S.B. 1070 are preempted by federal law[.]
Judge Bolton therefore limited her ruling only to the select few provisions that, under the relevant caselaw, it was wholly appropriate (required, even) for her to enjoin.
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008) (citations omitted).
The United States primarily asserts that the statutory provisions contained in S.B. 1070 are preempted by federal law. The Supremacy Clause of the United States Constitution makes federal law “the supreme law of the land.” U.S. Const. art. VI, cl. 2. The Supreme Court has consistently ruled that the federal government has broad and exclusive authority to regulate immigration, supported by both enumerated and implied constitutional powers.
B. Likelihood of Success on the Merits
The United States must first demonstrate a likelihood of success on the merits. Winter, 129 S. Ct. at 374. The United States challenges S.B. 1070 on its face, before it takes effect on July 29, 2010. (Pl.’s Mot. at 7.) “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.” United States v. Salerno, 481 U.S. 739, 745 (1987). The Supreme Court later observed, in considering a facial challenge, “[S]ome Members of the Court have criticized the Salerno formulation, [but] all agree that a facial challenge must fail where a statute has a ‘plainly legitimate sweep.’” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (quoting Washington v. Glucksberg, 521 U.S. 702, 739-40 & n.7 (1997) (Stevens, J., concurring in judgments)). In deciding a facial challenge, courts “must be careful not to go beyond the statute’s facial requirements and speculate about ‘hypothetical’ or ‘imaginary’ cases.” Id. at 449-50 (quoting United States v. Raines, 362 U.S. 17, 22 (1960)).
After explaining the high hurdle that the plaintiff must meet to warrant relief on its petition, Judge Bolton thoroughly explained why the United States had met its burden vis-a-vis the four portions of the law that the court was enjoining.
In the end, you have a very narrowly tailored ruling designed to stop enforcement only of provisions that are almost certainly unconstitutional. Of course, I have little doubt that someone — perhaps someone who understands the law about as well as he understands macroeconomics — will throw the term “judicial activism” around regarding this ruling. What he won’t do, because he cannot, is explain how applying Supreme Court caselaw, which the lower federal court is bound to do under the Constitution, is in any way being an “activist.”