The Judge in the Arizona immigration enforcement law case today enjoined key provisions of the law from being enforced tomorrow when the law goes into effect. This was not entirely suprising, as Arizona is in the Ninth Federal Circuit, which ought to be renamed the FAIL! circuit.
To my conservative friends who are blustering and hyperventilating: Relax. No matter the outcome of this hearing, it was going to be appealed. I’m more interested in the reaction of the average joe to this, because then we will better understand if the American public will understand that their consent is no longer required by the governing, who apparently have so little respect for the rule of law that they will openly display their disrespect for the concept.
Out of all the analyses I perused today, I think Legal Insurrection had one of the better ones. I don’t know if the Professor was trying to be subtle, or if he came to the real nub of today’s decision without really noting its significance.
The result of this statutory interpretation was that the Court found the procedure — as written — to interfere with the federal immigration scheme:
“Thus, an increase in the number of requests for determinations of immigration status, such as is likely to result from the mandatory requirement that Arizona law enforcement officials and agencies check the immigration status of any person who is arrested, will divert resources from the federal government’s other responsibilities and priorities.”
Now one of the thrusts of the government’s case is that the Arizona law violates the Supremacy Clause, because immigration is a matter where Congress was explicitly given jurisdiction in the Constitution. That’s all fine and dandy, but there are only two recognized situations that I am aware of where the Supremacy Clause becomes an issue:
1. State law regulates the Federal government directly, or it discriminates against it; and
2. State law interferes with a Congressional Policy.
Any argument that rests in any fashion on what amounts to a claim that “The state law will require the Federal government to do the job it reserved to itself as an exercise of its expressly granted power, which might mean that it could expend money and other resources that it would rather spend on other priorities.” meets neither of these standards. What’s more, it demonstrates a unilateral revocation of a concept that has kept this nation from coup and overthrow for about 230 years: The rule of law.
The rule of law, put simply, is the idea that the law rules men, not other men. Because the law applies to everyone equally, everyone submits to its authority, with the belief that if it ever becomes necessary, aggrieved parties will have their day in court, and “self-help” remedies (like gunfights), which are destructive to social order, will not be necessary. By this admission in her ruling, Judge Susan Bolton fails to comprehend that the Federal Government’s desire (or lack thereof) to enforce certain laws is a factor in whether or not a state may adopt a law that is the mirror of the corresponding Federal law does irreparable violence to this notion, as well as the notion of Federalism itself. The states are supposed to be co-equal sovereigns with the Federal government, granting it authority to perform specifically enumerated tasks, the performance of which is necessary to the maintenance of a viable nation.
What happened today was that a state which is suffering from a co-equal sovereign’s utter failure to perform a task that was specifically assigned to it. That assignment was originally made because of the expectation that the Federal government would secure the nation’s borders and protect its citizens from many of the ills that an enormous influx of illegal aliens would bring. Arizona, and other border states have had an incredible burden placed on their resources as they have had to provide services for people who have no legal right to be here, and from the other associated effects such as wage depression, and the growing amount of narco-crime that has followed the influx of these criminals. [Yes, I used the word "criminals". In my Black's Law Dictionary, it still applies to people who break the law.]
If the Federal government can be so arbitrary and capricious with regard to enforcement of laws relating to a core duty it holds, then we all have reason to fear, because selective enforcement can be applied to any Federal law. If this cannot motivate the average citizen to bring real change to Federal government, then not only are we lost, but we deserve to be. If we accept lawlessness garbed in the authority and mantle of law, then we have surrendered any notion of being a free people.