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.)
I can relate to the public disappointment, just as I relate to my students' fluttering eyelids. In Judge Bolton's opinion, the most important precedent relied on is Hines v. Davidowitz, a 1941 case in which the Supreme Court held that Pennsylvania could not require all non-citizens in the state to carry state alien-registration cards and display them whenever a policeman asked. The Hines opinion, by Justice Hugo Black, is dominated by discussions of the foreign affairs power, the Supremacy Clause, and Congress' plenary authority of matters of naturalization. But Justice Black also alludes to the Equal Protection Clause of the Fourteenth Amendment and warns that requiring aliens to carry papers would subject them "to a system of indiscriminate questioning similar to the espionage systems existing in other lands."
To me, that's the central question in United States v. Arizona: whether a state can single out a group of people for harsh restrictions, criminalize those who help or employ them, and require law enforcement personnel to sniff them out and demand papers. One doesn't have to be a fan of illegal aliens to believe that no one should be treated that way. I am a fan of judicial opinions that vindicate equality and dignity.
But I understand why those concepts are missing from a case that is almost certain to continue through a full trial on the merits, another District Court opinion, at least one appeal to the federal Court of Appeals, and one or more brushes with the Supreme Court. The real human issues will emerge over time, as witnesses come forward with their stories, experts produce statistics, and advocacy groups weigh in with amicus briefs laden with sophisticated discussion of history and political theory. Transcendent values will be discussed in the final order, and what is written in that opinion will be of great moment for the progress of American democracy. But until then, public debate on the values behind S.B. 1070 and other bills like it will continue--as it should. While it does, flannel-mouthed lawyers in ill-fitting suits will mouth terms like "Younger abstention" and "the Pike v. Bruce Church balancing test."
The law's delay will damp down oscillations in the public mood and force the rest of us to reflect on what is really at stake in Arizona. It will bore us into civil virtue. That's not a criticism; that's high praise. I often think boredom is the major force that prevents people from killing each other on the streets. And when you want boredom, call the Bar Association.
God bless careful lawyers and good judges. No matter how interesting the times, they bore us and they bore themselves; they snooze for our sins.
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