What strikes me as interesting about the discussion of Judge Susan Bolton’s blocking of Arizona’s immigration law is the underlying assumption in many quarters that it was political-the Washington Post portrays Bolton this morning as apolitical, or at least somebody who plays her political opinions close to the vest.
But isn’t it an unfortunate sign of the times that anybody has to insist that a federal judge isn’t political?
The other questions, of course, are whether it was the right decision and whether it will stand through the coming appeals. As the L.A. Times reports, Bolton’s ruling was a “facial” judgment: it said that the law has unconstitutional elements “on its face,” without waiting for evidence that enforcement would actually hurt individuals or violate their rights. The Supreme Court, according to the story, doesn’t generally like for judges to strike down laws that haven’t yet taken effect. The Times noted:
Yale law professor Peter Schuck agreed that the judge might have acted too soon. “By entertaining a facial challenge rather than waiting for an ‘as applied’ challenge, she jumped the gun,” he said. Doing so left her without “the benefit of a real set of facts to use in assessing the statute’s meaning and constitutionality,” he said. “She also gave short shrift to the presumption of constitutionality that federal judges are supposed to bring to any challenge to state statutes.”
However, the story also noted that Bolton followed court precedent with regard to immigration law. Heather Mac Donald has another excellent piece that takes up the issue of facial challenges:
The federal government asked Judge Bolton to enjoin SB 1070 before the statute even had a chance to operate. Such so-called “facial” challenges to a law are, in the words of the Supreme Court, “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.” The federal government didn’t even try to make that showing, nor did the judge require it. Had SB 1070 gone into effect and produced the constitutional Armageddon that its enemies predict – with legal aliens being stopped pretextually and hauled off to jail for hours or even days at a time, say – then there might have been an argument for an injunction.
I was interested that the ruling focused on how the law would affect legal immigrants and visitors to the U.S. rather than illegals. Rich Lowry sees comic relief in this:
For the sake of argument, let’s assume that visitors from countries like Norway and Australia are flooding into the border areas of Arizona. And let’s assume they engage in recklessly illegal conduct, daring cops to stop and arrest them. And let’s assume they exhibit all the behaviors associated with illegal immigrants. How could such a visitor escape the dreaded fate awaiting him when an officer asks about his legal status? Perhaps by producing a passport stamped with the duration of his stay, possessed by every visitor from a visa-waiver country?