Judge scoffs at pre-emption argument in AZ lawsuit

posted at 10:55 am on July 23, 2010 by Ed Morrissey

It didn’t take long for federal judge Susan Bolton to zero in on the holes in the Obama administration’s argument in their lawsuit against Arizona and its new must-enforce policy on immigration violations.  Bolton, a Democratic appointee, shot holes in the Department of Justice’s pre-emption argument immediately, and in a broader sense wondered why the federal government concerned itself at all over Arizona’s get-tough policy on illegal immigration:

“Why can’t Arizona be as inhospitable as they wish to people who have entered or remained in the United States?” U.S. District Judge Susan Bolton asked in a pointed exchange with Deputy Solicitor General Edwin S. Kneedler. Her comment came during a rare federal court hearing in the Justice Department’s lawsuit against Arizona and Gov. Jan Brewer (R).

Bolton, a Democratic appointee, also questioned a core part of the Justice Department’s argument that she should declare the law unconstitutional: that it is “preempted” by federal law because immigration enforcement is an exclusive federal prerogative.

“How is there a preemption issue?” the judge asked. “I understand there may be other issues, but you’re arguing preemption. Where is the preemption if everybody who is arrested for some crime has their immigration status checked?”

Answer: there is none. Even the DoJ recognizes that.  They have a BIET program that is designed to help local law enforcement personnel do exactly what the White House complains Arizona is doing.  Checking people who are arrested or detained for valid ID, and probing their status if they fail to have it, is so basic to law enforcement that Bolton must feel as though she’s slipped into the Twilight Zone.

The answer to her first question will undoubtedly be that Arizona can’t discriminate against people in their desire to be inhospitable.  But SB1070 contains language specifically prohibiting discrimination, and sets objective measures on identification that will constitute a positive assumption of legal status.  If the DoJ wants to argue that Arizona is applying the law in an unconstitutional manner, then they would have reason to take Arizona to court — but not before the law goes into effect.

Based on the initial reactions of Bolton, the White House may get laughed out of court more quickly than first thought.


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I live in San Clemente, CA, more than 70 miles from the Mexican border. Every time I drive to my home from the south, I drive through an immigration checkpoint on I-5…

motionview on July 23, 2010 at 11:52 AM

During a visit to California, I encountered such a checkpoint on I-15, north of San Diego. I was ready to pull out the driver’s license, but they just waved me on through. That was in 1995. By the standards of those critical of Arizona, it seems that California has been racist for a long time.

Bigfoot on July 23, 2010 at 7:41 PM

a 2300 page financial reform bill just got passed. It fundamentally transforms your relationship to your wealth.

Not a peep about it here.

Inanemergencydial on July 23, 2010 at 12:17 PM

Well, AP and Ed do have to eat and sleep sometime…

You might send it to them as a tip?

Mary in LA on July 23, 2010 at 9:30 PM

Several unfurled a large, white banner that blared “Stop SB1070.”

A WHITE banner? Racists.

CJ on July 23, 2010 at 10:01 PM

This Judge is a racist. GOP pundits demanding an apology from her in 5 4 3 2….

james23 on July 23, 2010 at 10:12 PM

Gives new meaning to the One’s administration filled with a bunch of “scofflaws”!

chickasaw42 on July 23, 2010 at 10:15 PM

crr6: next time you are in Washington DC and want your spanking in person, let me know… I’ll meet you at the Pentagon Memorial, give you the dime tour, and explain the Memorial’s meaning to you (things you won’t find in the brochure)… My Classmate has a bench there and I will be happy to show you that as well…

Let freedom ring!

Khun Joe on July 23, 2010 at 10:37 PM

Preemption? So, if the Obama DOJ wins against Arizona, does this mean that NYC cops can no longer arrest terrorist?

TN Mom on July 23, 2010 at 11:20 PM

I like the Halliburton guys. They look like real people, too.

http://s738.photobucket.com/albums/xx23/domerally10/Rally%20for%20Economic%20Survival/?albumview=slideshow&track=share_email_album_view_click

Governor Jindal’s speech of 7/21/10:

Part 1: http://www.youtube.com/watch?v=r5hyE3FUm6w

Part 2: http://www.youtube.com/watch?v=Czk8Lqs7yNM

cane_loader on July 23, 2010 at 1:50 PM

cane_loader:Outstanding,you did a helluva job,and has made
the USS Hot Air proud,great job!———:)

canopfor on July 24, 2010 at 3:21 AM

If Arizona’s new law is bad because it MAY lead to profiling, and profiling is bad, then shouldn’t affirmative action be abolished? After all, affirmative action offers aid based only on profiling.

Dr. Charles G. Waugh on July 24, 2010 at 7:02 AM

This lawsuit is Eric Holder’s and Barack Obama’s “The Dog Ate My Homework” lawsuit.

Lourdes on July 24, 2010 at 10:07 AM

Sorry, but what the judge and the law says means nothing to the Obama Regime. They have ignored the two cases they lost in the gulf. Do you think they will follow the law and the judgment in this case. After all, these illegal aliens are the biggest voter registration drive in history of the Democratic Party. Here in Ohio, Secretary of State, Jennifer Brunner is still holding on to 200,000 known fake voter registrations, in case they need them for the election. We in Ohio know that illegal voters have an ok to vote her. There was a large group that came down from New York and were caught illegally voting and she just told them to go back to New York. No questions asked to find out who sent them nor any legal action taken against them

pwb on July 24, 2010 at 10:22 AM

Crrr666 was not available for comment.

Funny though if you’re lurking about Crr6, this judge is saying exactly what most Hot Air commenters were saying in exchanges with you. (OUCH!!!)

hawkdriver on July 24, 2010 at 10:48 AM

So the judge repudiated DoJs argument? I like love it!

IrishEyes on July 24, 2010 at 10:53 AM

Whoops. I meant refudiated. Darn, those new words and old habits!

IrishEyes on July 24, 2010 at 11:01 AM

The irony of those opposed to the Arizona law because it may (may!) lead to racial profiling is that they themselves are racial profilers par excellence. To wit: “He’s not George Bush (not that he’s running, by the way) … check! He’s black …. check! Gotta vote for Big O!”

ya2daup on July 24, 2010 at 11:45 AM

What I would have loved to hear from the judge…
” What constitutional scholar thought the feds have a case here ? “

Jeff2161 on July 24, 2010 at 11:47 AM

Crrr666 was not available for comment.

Yeah, I was. Check the first page.

Funny though if you’re lurking about Crr6, this judge is saying exactly what most Hot Air commenters were saying in exchanges with you. (OUCH!!!)

hawkdriver on July 24, 2010 at 10:48 AM

Er, no. Note that several other commenters agree with me in saying that it’s generally impossible to tell how a judge will rule based upon their questions at a hearing or oral argument. The judge just asked the DoJ to flesh out the preemption argument. She didn’t “scoff” at it.

crr6 on July 24, 2010 at 12:22 PM

In related news: MEXICAN Cartel ARMY Invades TEXAS Ranches

Mutnodjmet on July 24, 2010 at 12:27 PM

Help Arizona defeat Obama…
http://www.keepazsafe.com/

Jeff2161 on July 24, 2010 at 1:36 PM

Er, no. Note that several other commenters agree with me in saying that it’s generally impossible to tell how a judge will rule based upon their questions at a hearing or oral argument. The judge just asked the DoJ to flesh out the preemption argument. She didn’t “scoff” at it.

crr6 on July 24, 2010 at 12:22 PM

Ahhh, the dying last gasp of a losing argument . . .

BigAlSouth on July 25, 2010 at 7:14 AM

Whether or not Judge Bolton’s questions and comments at the oral argument reflected criticism on the part of the Judge toward the pre-emption argument, under the law of pre-emption, the Judge should be expressing criticism and the Obama Administration should be laughed out of court for the pre-emption lawsuit.

Phil Byler on July 25, 2010 at 7:48 AM

Good gracious.

I don’t buy the preemption argument any more than most of you guys do, but judges ask both sides difficult questions. Ed’s reporting here was really dishonest, in the sense that it didn’t report any of the questions that the judge asked Arizona. If you read/listen to news sources other than conservative blogs, radio, and TV, you’d have learned that the judge asked a lot of tough questions of Arizona as well, which isn’t surprising, since that’s what her freaking job is.

What I would have loved to hear from the judge…
” What constitutional scholar thought the feds have a case here ? “

Jeff2161 on July 24, 2010 at 11:47 AM

And they would have responded, “Well, for one, Erwin Chemerinsky, Dean of UC-Irvine Law, author of THE treatise on Constitutional Law (seriously, does anyone even bother writing another one?), and probably the most famous and well-regarded Con Law professor in the country.”

Proud Rino on July 25, 2010 at 8:39 AM

The Obama Regime must have failed constitutional law in college.

Amendments X and XIV deal with delegation and enforcement of Immigration and enforcement of the law(s).

Amendment X – The powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States respectively, or to the people.

Amendment XIV (Section I) – specifically, No Stat shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States: nor shall any State deprived any person of life, liberty, or property, without due process of law: nor deny to any person within the jurisdictions the equal protection of the laws.

While these Amendments are clear, the DOJ fails to comprehend the basic text governing Constitutional Law. No state may abridge (make weaker) any law/rule enacted by the United States. However, the rule allows each state to strengthen a Constitutional law, which is what AZ did, if the legal beagles of the DOJ would digest and comprehend the 10-12 pages of HB 1070 – depending on font size (maybe the DOJ should use the largest font available so they do not miss a word of punctuation.

MSGTAS on July 25, 2010 at 10:20 AM

Erwin Chemerinsky is an activist leftist. It’s pretty safe to say he will be wrong 100% of the time he opens his yap.

Inanemergencydial on July 25, 2010 at 11:36 AM

The judge just asked the DoJ to flesh out the preemption argument. She didn’t “scoff” at it.

crr6 on July 24, 2010 at 12:22 PM

I’m going to give the Devil his due here. On the narrow point, we don’t know the emotions that accompanied Judge Bolton’s questions, and it seems to be a matter of Ed Morrissey’s interpretation that she scoffed. Reflecting on the conduct that is reportedly expected of judges, it seems unlikely that Judge Bolton scoffed during a judicial proceeding. More broadly, this isn’t the first time Morrissey has set readers up for disappointment by exaggerating what was already good news, such as that a judge probed a bad or doubtful argument intelligently. I’ve learned to consider his headlines carefully before taking the click-bait, and I’ve urged him to take good news as he finds it and resist the urge to tart it up.

Kralizec on July 25, 2010 at 12:43 PM

Erwin Chemerinsky is an activist leftist. It’s pretty safe to say he will be wrong 100% of the time he opens his yap.

Inanemergencydial on July 25, 2010 at 11:36 AM

http://en.wikipedia.org/wiki/Ad_hominem

Proud Rino on July 25, 2010 at 1:27 PM

Proud Rino on July 25, 2010 at 1:27 PM

Silly twaggot, don’t you know wikipedia isn’t a reliable source?

Inanemergencydial on July 25, 2010 at 1:30 PM

Silly twaggot, don’t you know wikipedia isn’t a reliable source?

Inanemergencydial on July 25, 2010 at 1:30 PM

http://en.wikipedia.org/wiki/Ad_hominem

Proud Rino on July 25, 2010 at 1:36 PM

Poor leftist activist…

Inanemergencydial on July 25, 2010 at 1:54 PM

…Erwin Chemerinsky, Dean of UC-Irvine Law, author of THE treatise on Constitutional Law (seriously, does anyone even bother writing another one?), and probably the most famous and well-regarded Con Law professor in the country.

Proud Rino on July 25, 2010 at 8:39 AM

It’s doubtful that good understanding is something singular or that it can be judged well on the basis of superlative fame and high regard.

Kralizec on July 25, 2010 at 2:00 PM

a 2300 page financial reform bill just got passed. It fundamentally transforms your relationship to your wealth.
Not a peep about it here.
Inanemergencydial on July 23, 2010 at 12:17 PM

Maybe you missed the name of the site: Hot Air. There’s a hint there and a trend if you actually analyze what the threads are focused on. I’ll let you try to fill in the blanks.

Mr_Magoo on July 25, 2010 at 2:15 PM

A word to the wise.

Judges often are hardest on the side they intend to rule for. They do this to try to expose any hidden weakness in the position they intend to embrace. Devil’s advocate.

I’ve seen many situations where the lawyer beat up in oral argument prevailed in the written decision.

Don’t be surprised . . .

Labamigo on July 25, 2010 at 3:58 PM

Really, this all comes down to Arizona arresting the illegals and then keeping them until they can be transferred to federal jurisdiction. If the feds refuse to take jurisdiction, the good folks of Arizona could just give them a bus ticket to DC. The People’s Republic of San Francisco used this idea to clean their streets of the homeless back in the 90’s, when they sent them to Antelope Oregon to join up with the famous Bhagwan Shree Rajneesh.f the homeless back in the 90’s, when they sent them to Antelope, Oregon to join up with the famous Bhagwan Shree Rajneesh.

J_Crater on July 25, 2010 at 5:00 PM

No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

Good old Article 1 Sec. 10 of the Constitution. I’d love to hear the DOJ deny invasion with those signs posted on Arizona soil, 80 miles from the border. I guess we need those stimulus bucks to buy some serious military toys for the Arizona State Police.

Jeff2161 on July 25, 2010 at 6:10 PM

I guess we need those stimulus bucks to buy some serious military toys for the Arizona State Police.

Jeff2161 on July 25, 2010 at 6:10 PM

There is something called the Arizona National Guard.

Brian1972 on July 26, 2010 at 8:30 AM

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