- The Washington Times - Wednesday, August 4, 2010

Showing her pro-Obama colors in the federal government’s lawsuit challenging the constitutionality of Arizona’s new immigration law, U.S. District Court Judge Susan Bolton temporarily enjoined implementation of various parts of the law (“Should Arizona secede?” Friday, Commentary).

Judge Bolton ruled that checking an individual’s immigration status under the reasonable suspicion clause is mandatory, whereas checking an individual’s immigration status under the federal law is discretionary. She thereupon ruled that in comparison to a permissible, discretionary check of one’s immigration status, a mandatory check of one’s immigration status under Arizona’s reasonable suspicion clause would have two significant results. First, she held that a mandatory check would impermissibly impose burdens on “lawfully-present aliens” in violation of the Supreme Court’s ruling in Hines v. Davidowitz. Second, she held that the mandatory check under the reasonable suspicion clause would “increase” requests for status checks and place an impermissible burden on federal resources and priorities.

There are several problems with the judge’s rulings. First, she makes no citation to the record for evidence to support her findings. In particular, she cites no evidence to support her finding that a mandatory check of one’s immigration status as compared to a discretionary check would “increase” requests for status checks enough to impose an impermissible burden on federal resources. She also cites no evidence to support her finding that an immigration check under the reasonable suspicion clause would impermissibly burden lawfully present aliens. The bottom line is that her findings amount to sheer speculation.

Typically in rendering a decision, a judge tells the losing party why its arguments are unpersuasive. In the present case, Judge Bolton made no reference in her decision to any of Arizona’s arguments, save some technical comments about theclause following the reasonable suspicion clause. One is left to wonder why the judge did not do so in this case.

Finally, where a federal agency is understaffed to handle what may turn out to be an increased workload as a result of the passage of a state law, the solution is to hire more people, not to challenge the constitutionality of a state law.

HARRISON E. MCCANDLISH

Alexandria, Va.