|"Oh, Oh, I didn't count on this!" (Getty Images)|
1. US District Judge Susan R. Bolton was highly underestimated. Although I was certainly guilty of this, I have a better excuse than many (four weeks ago I did not even know who she was). I believed that probably no judge sitting in Phoenix would have the kahunas (that part was right) to do the right thing—to follow the law and enjoin SB 1070. The Ninth Circuit Court of Appeals in San Francisco would quickly correct the situation on the initial appeal should that happen.
Judge Bolton not only demonstrated she understands the law, but also that she possesses courage, and that she is remarkably sharp (no real surprise because most federal judges are). Her opinion will stand the test of time, along with the scrutiny of history.
Even as the tea leaves coming out in the media led me to conclude she was probably going to somehow split the baby, I felt somewhat pessimistic that she would do the right thing. This pessimism has been honed through the years by observing first-hand judges arrive at the decision they want to arrive at by every intellectual dishonesty imaginable. Not so with Judge Bolton. She tore this racist law to shreds, and justifiably so.
The way she split the baby, and more in form than in substance, was by holding the law to be severable in striking it down, that is, she struck down its unconstitutional parts while leaving the constitutional parts standing. She did not have to do this.
She could have held under Arizona state severability law that, despite a severability clause in SB 1070 itself, the valid portions were so “intimately connected” with the invalid provisions so as to raise the presumption that the Arizona Legislature would not have enacted the valid provisions without the invalid provisions. She then could have struck down the entire law.
Had she ruled that way, I feel she would have concluded correctly. All she left standing were provisions relating to harboring, concealing, and transporting illegal aliens (including the impoundment of vehicles used to do so); and provisions that are superfluous in that they provide for SB 1070 violations where the traffic code is already being violated, but the incidents involve illegal aliens.
Those provisions were going to be held to be legal in any court, anywhere, and against anybody. They are essentially meaningless, but Bolton threw pro-SB 1070 people a bone, and at least a small way to save face, though they are not astute enough to go about doing so. What she struck down was the entirety of SB 1070 anyway, and the remaining bits certainly were very intimately connected with the invalid provisions, because they have no meaning or teeth without them.
I believe you can argue Bolton was correct on the law and not just being politically savvy, but my money is on the latter. No matter. This was a total victory for the anti-SB 1070 people, who in my humble opinion should look at it that way, and be grateful. There are enough real battles to fight without fighting the losing battle about what is left over.
Bolton’s opinion was thorough, concise, well-organized, and most likely appeal-proof. (caveat on United States Supreme Court below).
2. SB 1070 was drafted by ignorant clowns. Does this really surprise anybody? Immigration-fee ambulance chaser, connected-to-white-supremacists, alleged law professor, and probable Kirby vacuum cleaner salesman Kurt K. Kobach drafted this law with the help of others even less talented than he.
Only a total moron could think this law was constitutional (to wit, Republican Attorney General candidate and Arpaio-buddy Andrew Thomas—“the law is on our side”…yeah, right), but what follows is just one example of how stupid this law was.
In the meat of the law, Section 2(B), which provided for arrests and immigration status checks, Kobach initially had the law triggered by any “lawful contact” with a police officer. He then wanted immigration status checks on those who were “reasonably suspected” of being illegal aliens.
No veteran of criminal law, Kobach realized after the bill was signed into law that if officers were going to gallivant around simply making “lawful contact” (which was too broad to withstand constitutional scrutiny), they at least had to have a “reasonable suspicion” of criminal conduct in the first place to make an initial detention (language is from the seminal criminal case of Terry v Ohio in 1968), or the stop would not be valid. Left unchanged, the original language would have left law enforcement extra vulnerable to racial profiling claims (stops based on skin color and appearance alone), and to cases being thrown out for unlawful initial stops.
So he had the law amended to “for any lawful stop, detention or arrest” as the trigger point so as to define the initial detention as a lawful one from a search and seizure standpoint. This made the law more palatable in one sense, but it revealed the law’s true agenda. That is, “When we want to (when the person looks Hispanic), we’re going to demand that everyone’s immigration status be checked, because we’re going to arrest them and check it.”
After the law was changed to “for any lawful stop, detention or arrest”, it became problematic that the next sentence provided for “mandatory immigration status checks upon arrest”, because the law by its own plain words was not limited to arrest after reasonable suspicion of being an illegal alien, but to all arrests of any kind.
Remember, the original version did not say “arrest”, it said “contact”, and the sentences were held to be unrelated, or independent of one another. Thus, as written, SB 1070 would have mandated immigration checks after every arrest in the state. Kobach and friends, Pearce and crew, are like the Keystone Cops, scurrying about not having the slightest clue what they are doing.
Again, this surprises nobody who has been observing the situation objectively.
To completely dissect the constitutional problems with SB 1070 would take a 500-page opinion, not just the 36-pager on preemption handed down by Bolton.
3. The pro-1070 people drank the kool aid, and are still true believers.
Brewer won’t work with the President on immigration reform. “Everything is off the table until we secure our borders.” Isn’t she miscalculating the strength of her position a little? Pearce believes the injunction “will be lifted”. Good luck, amigo.
Just yesterday the Ninth Circuit Court of Appeals denied team-Brewer’s 40-page motion for an expedited appeal of the injunction in a two-page order that basically boils down to team-Brewer “not following the court rules”. In other words, Brewer and Co. are saying “impoverished migrants better follow the law or watch out, we and our agenda are above the law.” They say it with SB 1070. They say it with every action they take.
I cannot begin to relate to you how many “legal observers” on Huffington Post bragged, mocked, and preened to me about how SB 1070 would establish a new order, and that it was plainly constitutional. I told all of them to check back with me on or after July 29. To date, I have not heard from even one of them. Go figure.
Over the next year or so, SB 1070, hopefully along with Brewer, Pearce, Arpaio, and the rest of nativists can be filed in the trash bin of history.
The funniest line of the past few days was written by David Safier of “Blog for Arizona”, who noted that every right-wing idiot legal expert (he put it a little more diplomatically) insisted SB 1070 was legal, and that all you had to do to realize it was to, children, “read the law.”
Safier laughingly ponders whether Bolton “took the time to read” SB 1070. If you take the time to read her opinion, it is pretty clear that she read it. In spades. And she was not impressed.
Taxpayers in Arizona should not be impressed either.
4. Beware of the Fab Five. (The conservative justices on the Supreme Court of the United States)
I have said recently that:
"No Ninth Circuit Court of Appeals Judge, nor any sitting Supreme Court Justice, would even for an instant consider voting for Arizona on the Preemption/Supremacy Clause grounds.
A Justice voting for Arizona on that issue would be a laughing stock in the legal community for generations, much like the Justice Roger Brooke Taney, who delivered the 1857 opinion of the Supreme Court in the Dred Scott decision, which held that Virginia-born slave Dred Scott living in free state Missouri had no case for freedom because he was “property” that could not be taken away from his dead owner’s estate without violating the Fifth Amendment’s guarantee of Due Process of Law.
I hope I am right. For a number of reasons, I think I am. Yet I caution you that I did not think any of them but the very king of intellectual dishonesty, Arizonan William Rehnquist, would vote to prevent the State of Florida from deciding its own election for President in 2000. Really, they all were just voting for Bush to be President.”
Any lawyer worth his salt can make a convincing argument that a horse chestnut is a chestnut horse. All of the lawyers on the Supreme Court are certainly worth their salt.
Let’s hope they are worth our trust also.