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.