The Blessed Tedium of the Arizona Immigration Case

"Lawyers," my brother Gus likes to say while preparing his hourly bills, "are paid to endure tedium." He doesn't add the corollary: sometimes tedious lawyers are worth every penny.

I thought about the Gus Epps rule as I read through Judge Susan Bolton's 36-page order granting a preliminary injunction against the key portions of Arizona's anti-immigrant S.B. 1070. The bill has been a flashpoint for civil-rights advocates, Latino groups, immigration restrictionists and even foreign governments. Its proponents angrily denounce illegal immigrants as disease-bearing drug smuggling degenerates; its opponents respond that the bill is designed to produce racial profiling and stigmatize Latinos, including many who are U.S. citizens by birth. Whether it's "border security" or "human equality," both sides agree that important values are at stake.

Enter the Obama administration and Judge Bolton. The Justice Department, which sought a preliminary injunction, made beyond question the most boring possible arguments against the law. In essence, it said, regulating immigration is a federal matter, and Arizona's law will make our jobs harder. If S.B. 1070 goes into effect, local cops will be grabbing thousands of people off the streets and demanding that federal officials check their immigration status right away. We won't be able to undertake any enforcement actions of our own; we'll be working for Sheriff Arpaio rather than the people of the nation.

DoJ's argument was not about the rights of immigrants, legal or illegal, or even of American citizens: it was about the federal government's prerogative to set the nation's immigration policy, and about administrative burdens on federal agencies like the Border Patrol and Immigration and Customs Enforcement. The Judge agreed as to most of the law's key provisions. Her opinion is technical and dry. It is devoid of any reference to "racial profiling" or even "equal protection of the laws." Instead, it is full of the kind of language that often induces coma in my Constitutional Law students--"field pre-emption," "dormant commerce clause," "plenary authority," "balance of equities." (If my current students will please leave the room now, I will confess that sometimes even I have trouble remaining awake during these important but utterly stupefying portions of my Con Law I course.)

Public reaction to the boringness of the case has understandably been disappointment. They wanted WWE Raw and instead got Montesquieu's Spirit of the Laws. Writing in Salon, John Doty had confidently predicted that the Administration would lose the case, and deserved to, because it eschewed broad arguments about equality and human dignity. Writing in National Review Online, Heather Mac Donald actually found the Judge's emphasis on legal arguments a "transparent" fiction, verging on "bad faith," and suggesting the Judge was improperly in cahoots with the Administration. (If these serious charges are true, they are evidence of a delicious new strategy by "activist judges"--simply by interpreting the law and refusing to legislate from the bench, they can thwart the will of the people.)

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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