Hours after yesterday’s decision by President Bill Clinton judicial appointee Susan Bolton to preemptively stop enforcement of Arizona’s immigration enforcement law, Thomas A. Saenz, president of the Mexican American Legal Defense and Educational Fund (MALDEF), told The New York Times: “This is a warning to any other jurisdiction.” Just in case the message from the Obama administration and its leftist allies was not clear, Obama appointee U.S. Attorney Dennis Burke told The Associated Press: “Surely it’s going to make states pause and consider how they’re drafting legislation and how it fits in a constitutional framework.”
But no amount of pause by states and localities could ever possibly satisfy the Obama administration, its amnesty allies, and activist judges like Bolton. In a textbook case of judicial activism, Judge Bolton rewrote the Arizona law to her own needs, invented her own facts and ignored clear federal law. President Jimmy Carter appointee and immigration law professor at Yale Law School Peter Schuck told The New York Times: “She rushed to judgment in a way I can only assume reflects a lot of pressure from the federal government to get this case resolved quickly.”
The Obama administration’s case against Arizona sought to preemptively stop enforcement of Arizona’s new immigration law. The legal term for this is a “facial challenge,” and federal precedent is clear that facial challenges “must be careful not to go beyond the statute’s facial requirements and speculate about ‘hypothetical’ or imaginary cases.” But that is exactly what Judge Bolton did. First, she ignored Section 2(B) of the law as written and completely ignored the section’s first sentence that required an officer to have “reasonable suspicion” that a person was in the country illegally before their immigration status should be checked. Then, she invented a completely hypothetical case about a Chilean dog walker detained by a completely fictional Sheriff Smith. Finally, despite the fact that 8 U.S.C. ß1373 clearly requires the federal government to “respond to an inquiry by a State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual,” Judge Bolton concluded that the Obama administration’s decision not to enforce this provision was as good as rewriting the law itself.
Taken alone, the White House’s behavior on this issue is troubling enough. But put into the broader context of the first 18 months of this Administration, a truly pernicious pattern emerges. First, there was the Obama Justice Department’s decision to dismiss voter intimidation charges against the New Black Panther Party. Then there was the Obama administration’s use of TARP to bail out its union allies in a way that bankruptcy law scholars have called “so outrageous and illegal that until March of this year , nobody even conceptualized it.” Then there was the Obama administration’s shakedown of BP in the White House’s Roosevelt Room. Less than a week later after a federal court found its first oil drilling ban to be “arbitrary and capricious,” the Obama administration issued a second oil drilling ban that was wider and killed even more jobs than the first.
Americans cannot be cowed by the Obama administration and its La Raza and MALDEF allies. Giving into bullies only encourages their behavior. Finally this lawsuit should be a permanent reminder to everyone who wants to call themselves a conservative that any and all claims about an amnesty deal are complete fiction. La Raza and MALDEF will fight every enforcement measure in any such deal tooth and nail while administrations like this one will simply choose not to enforce them. Meanwhile, the amnesty provisions would be instantaneous and permanent. Arizona Gov. Jan Brewer (R) has vowed to fight this decision all the way to the Supreme Court, and she deserves support.