For those who support Arizona's controversial new immigration measure, there is very little in U.S. District Judge Susan Bolton's big ruling
Wednesday that is encouraging.
Yes, the veteran judge gave the state the go-ahead to proceed with some of its new ideas -- there was some tinkering of the human smuggling provision, for example, and it's now formally a crime in Arizona to pick up a day laborer in a car. And no, she didn't buy the Commerce Clause argument offered up by the Justice Department as a justification for blocking the law, pending a full judicial review. Bolton even helpfully suggested at one point in her ruling how the state legislature could revise one particularly ambiguous provision of SB 1070, as the Arizona law is known, to ensure a better reception on future judicial review.
Here is just one example of her relatively gentle treatment of Arizona's position. She wrote that if enforcement of certain portions of the law is not blocked, "the United States is likely to suffer irreparable harm. This is so because the federal government's ability to enforce its policies and achieve its objectives will be undermined by the state's enforcement of statutes that interfere with federal law, even if the Court were to conclude that the state statutes have substantially the same goals as federal law."
But otherwise, and almost all down the line, Bolton accepted the premise of the federal government's argument: No state can unilaterally impose dramatic burdens on federal immigration resources and priorities without the express, written consent of the federal government. By enjoining the most onerous provisions of the Arizona law, and by predicting that there was a substantial "likelihood of success on the merits" of the Justice Department's challenge to SB 1070, she has laid down a marker that Arizona will have a hard time picking up as the case now wends it way up to the federal appeals court level.
For now, Arizona must shelve its plans to require a check of immigration status for anyone stopped by police under reasonable suspicion of unlawful presence in the state. A provision that made it a state crime to violate federal immigration registration laws also is on hold. And unlawful immigrants in Arizona can still seek work there without being charged with a crime. In other words, the provisions everyone was talking about and that brought so much attention to the immigration issue are now in limbo and unlikely to ever see the light of day.
Judge Bolton put it very clearly near the end of her 36-page ruling:
"Considering the substantial complexity in determining whether a particular public offense makes an alien removable from the United States and the fact that this determination is ultimately made by federal judges, there is a substantial likelihood that officers will wrongfully arrest legal resident aliens under the new [law]. By enforcing this statute, Arizona would impose a 'distinct, unusual and extraordinary' burden on legal resident aliens that only the federal government has the authority to impose."
But there are limits to the significance of Wednesday's developments. For example, Bolton's ruling has no precedential value. Federal judges in other states are free to ignore it. And supporters of these types of provisions in other states now at least have a guidepost to help them craft legislation that might just make their efforts more palatable to the judiciary. The same is true for provisions of the Arizona law that Bolton allowed to take effect at midnight Thursday.
Arizona promised an "expedited appeal" to the 9th U.S. Circuit Court of Appeals, and I suppose it's possible that the federal appeals court will overturn Bolton's ruling. But I wouldn't bet on it. Nor would I bet on the United States Supreme Court getting involved at this early stage of the case. It is much more likely that the 9th Circuit will affirm Bolton's ruling, the Supreme Court won't intervene, and the dispute will continue toward some sort of trial. It's a process that likely will take years and generate no small amount of frustration (not to mention attorneys fees for Arizona) before it's through.
Which is why, perhaps, the most striking development Wednesday -- most legal observers had predicted that the Arizona law would be blocked -- was the reaction to it by Arizona Gov. Jan Brewer. She said: "The bottom line is we've known all along that it is the responsibility of the feds and they haven't done their job, so we were going to help them do that." It's not sworn testimony but perhaps it's an overture to the White House and Congress to reach a political resolution here. And right now a sensible political resolution ought to look really good to all of the parties involved.