For the past decade or so, legal leftists have attempted to redefine the term “judicial activism.” They have suggested that “judicial activism” occurs whenever precedent is overruled (i.e. Roe v. Wade); they have suggested that “judicial activism” occurs when the popular will is overturned (i.e. campaign finance reform). There is truly only one correct definition of “judicial activism:” when judges enact their own policy preferences rather than the law.
On Wednesday, U.S. District Judge Susan Bolton became Example No. 1A in the pantheon of judicial activism. Not only did she decide to purposefully misread Arizona’s immigration law, she also willfully blinded herself to basic fact. Her ruling today was utterly unhinged and untethered from reality.
She ruled that portions of the law would not go into effect. Those portions include, according to Jonathan Adler at Volokh Conspiracy:
• Requiring an officer to determine immigration status of a person stopped for an alleged separate crime if there is reasonable suspicion of illegal immigration status;
• Creating a crime for failure to carry “alien-registration papers.”
• Creating a crime for illegals to solicit, apply for, or perform work.
• Allowing warrantless arrest for suspicion of illegal immigration status plus an offense making them deportable.
How do any of these provisions violate the Constitution? They don’t. But Bolton’s ruling relies on idiotic rationales rather than the text of the Constitution.
For example, the Arizona law requires that “any person who is arrested shall have the person’s immigration status determined before the person is released.” The State of Arizona argued that this sentence was to be connected with the prior sentence, which would mean that only if there is reasonable suspicion that a person arrested is presently illegal, should immigration status be checked. Judge Bolton disagreed, stating that the sentence is meant to be read on its own. That is a reasonable perspective (in fact, in my view, it’s right). But so what? Why shouldn’t arrestees have their immigration status checked? Here’s where Bolton goes off the rails: “Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully present aliens because their liberty will be restricted while their status is checked.”
That’s just plain nuts. The burden of having immigration status checked is no burden at all. All you have to do is show an ID. It’s that simple. But for Bolton, even that minor inconvenience is too much, because a legally present alien may have forgotten her ID at home. So let’s just ignore the 1,000 illegal immigrants who were arrested because one legal alien forgot their ID.
But Bolton’s not done. The bigger problem, she writes, is that “the number of requests that will emanate from Arizona as a result of determining the status of every arrestee is likely to impermissibly burden federal resources and redirect federal agencies away from the priorities they have established.”
This is a contention Bolton makes over and over again in her ruling. And it is completely nonsensical. In other words, Arizona’s enforcement of immigration law will force the federal government to enforce immigration law. And we can’t have that—it would clog up the works. Sensing an agenda yet?
This injunction isn’t a mere injunction. It’s more than that. The legal standard here is that for an injunction to be levied, the moving party must show a likelihood of victory on the merits. Bolton’s ruling here basically states that the Department of Justice has a strong case that the law is altogether unconstitutional. This is false.
But no matter. There is no doubt that this case will eventually reach the Supreme Court. While it winds its way through the legal system, thousands more illegals will pour across Arizona’s border, more legal Arizonans will be killed, maimed, assaulted and raped, and Judge Bolton will stand, smiling, as it happens.