Mark Levin: Arizona Ruling an “Abomination???

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  • 03/02/2023

Mark Levin, in his radio-program opening monologue last night, did an analysis of what he found to be the most egregious elements of U.S. District Judge Susan Bolton’s activist ruling that guts the new Arizona immigration enforcement law.

Levin points to the heart of the matter in his analysis: The court based its decision on suppositions and hypotheticals which, in a facial (preliminary) challenge, it is specifically barred from doing. His producer was kind enough to provide Human Events with the audio. So here it is, as well as the transcript:

We’re going to discuss the Arizona case.  I’ve broken it down… We have this one judge, whom by the way was appointed by Clinton on the recommendation of Jon Kyl and voted for by John McCain.  Well, she really made a preposterous ruling today.  An abomination.

United States v. the State of Arizona, and Governor Janice Brewer, preliminary injunction and here’s the summary from me.

This court’s decision is a typical example of a judge stating the correct legal standard, but then ignoring it and applying the test in a fashion completely divorced from the facts of the case in order to reach a predetermined decision.

Now I know you in this audience, I know you’re smart.  So, I went through the case, I’ve broken it down.  I’m only going to hit the fundamentals, but I’m going to try to do it in plain English.

First, the court states correctly that the sort of constitutional challenge brought here—a facial challenge seeking a preliminary injunction—is the most difficult challenge to successfully mount. It requires that the plaintiff—here the federal government—must demonstrate that the law can never be applied in a constitutional fashion.

The test cannot be met with hypothetical argument—yet that is exactly what the court relies on in its ruling, that the Arizona law will impose an impermissible burden on law enforcement, which is to determine the legal status of a person detained pursuant to the Arizona law on the reasonable suspicion that the person is in the country illegally.

The court does not provide any empirical basis to support its conclusion. It’s pure supposition.

As the court itself notes, the burden a party must meet when engaging in a facial challenge, that is before a trial, before a hearing on the merits, before discovery, just a claim by the other side this is unconstitutional—do not enact the law, do not allow the law to go into effect until we have our trial—high burden. 

And it’s a burden that is established in the United States Supreme Court, United States v. Salerno. The court pays lip service to Salerno at the beginning of its analysis on the “likelihood of success on the merits,” but then proceeds to ignore the Salerno case principles.

The court cites Salerno when it notes: “A facial challenge must fail where a statute has a ‘plainly legitimate sweep.’” In deciding a facial challenge, courts “must be careful not to go beyond the statute’s facial requirements and speculate about ‘hypothetical’ or imaginary cases.” Then the court doesn’t even attempt to actually analyze the provisions it overturns within the Salerno context, except in one instance—in footnote 18—where it upholds a provision of the Arizona law, a provision that is not among the provision that we’re focused on right now.

Distinguish the facial challenge from an as-applied challenge. At one point the court engages in a hypothetical example, when it talks about a potential unfair burden on a legal alien failing to have a dog on a leash, wondering whether he could be detained and subject to an impermissible burden for not carrying his papers under those circumstances.

The court talks about John Doe, a legal alien from Chile who was walking his dog without a leash and was stopped by Sheriff Smith and detained at the local jail for eight hours while his status was checked. It didn’t actually happen.  And the test is, it actually has to happen.

The judge also worries that increasing the time a person is detained while his immigration status is being determined might be unconstitutional. Again, pure speculation.

Even more, the First Circuit Court of Appeals has already found that such a delay is permissible where there is reasonable suspicion to check a person’s status.
In the bulk of its legal analysis, this court applies a selective reading of the case to an incomplete reading of the statute. In particular, respecting the provision related to confirming a person’s legal status, the court largely ignores the requirement that law-enforcement officers are able to confirm a person’s legal status only where there is a reasonable suspicion that a person is in the country illegally. The judge essentially omits the reasonable-suspicion component of the law and concludes that the act implements a new set of immigration rules particular to Arizona, in violation of another case called Hines v. Davidowitz.

Now this case, Hines, is an old case dealing with a vastly different Pennsylvania law. Stick with me. Here’s what the Hines court correctly concluded: “The question whether a state law is invalid as conflicting with federal laws touching the same subject is not to be determined according to any rigid formula or rule, but depends upon whether, under the circumstances of the particular case, the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

The Pennsylvania act was struck down. It required every alien 18 years or older, with certain exceptions, to register once each year; provide such information as is required by the statute, plus any other information and details that the Department of Labor and Industry for Pennsylvania may direct; pay $1 as an annual registration fee; receive an alien identification card and carry it at all times by the state; show the card whenever it may be demanded by any police officer or agent of the Department of Labor and Industry, and exhibit the card as a condition precedent to registering a motor vehicle in his name or obtaining a license to operate one.

The Pennsylvania Department of Labor and Industry is charged with the duties of classifying the registrations for the purpose of ready reference and it goes on and on and on. 

In other words, Pennsylvania put in place its own immigration law.  That is not what Arizona has done.

In the Hines case, the court said, our conclusion is that the challenger of the Pennsylvania law is correct in his contention that the power to restrict, limit, regulate, and register aliens as a distinct group is not an equal and continuously existing concurrent power of state and nation, but that whatever power a state may have is subordinate to supreme national law.

So Hines does not support the court’s conclusion respecting the Arizona statute. That case clearly deals with an entirely new legal regime. Arizona’s statute merely complements the federal statutory scheme.

To put it more bluntly, if anything the Hines decision supports Arizona.

Amazingly, the court does not provide any substantive analysis of the very high standards required for mounting a successful facial challenge. The judge thinks certain events or difficulties will occur, and therefore uses her thoughts as a substitute for empirical evidence. The fact is that Arizona does not create any new or additional federal responsibilities. It does not establish any new or inconsistent obligations for aliens legally or illegally residing or otherwise found in Arizona. And, unlike the Hines case so prominent in the court’s ruling, Arizona’s law does not establish any new or extra forms, registration procedures, or other obligations for aliens, legal or otherwise.
Now, respecting preemption, we hear this word thrown around all the time.  There is Supreme Court precedent on this issue.  The issue here is whether federal immigration law preempts Arizona’s state law.  The issue in that respect is whether the federal law covers the whole field.  Whether the federal law is not meant to cover the whole field but also relies on state and local support.

So respecting preemption which is the substantive core of the federal government’s case, once again the court presents no evidence in support of its conclusion that Arizona is likely to fail on inquiring into the legal status, among other things, or that it will impermissibly interfere with federal government’s allocation of resources. 

Ladies and gentlemen, Arizona isn’t requiring the federal government to do anything. The federal government can choose not to take Arizona’s calls and not cooperate with Arizona. The court has essentially parroted the federal government’s arguments and suppositions about its burdens.

Moreover, Arizona does not preempt federal law as explained above.  It does not create a new immigration regime.  The federal government does not “occupy the field” in any event.

As a matter of longstanding federal law practice, it encourages states to assist in the enforcement of federal immigration law.

I think the word “abomination” does not overstate this court’s decision.  It’s a terrible, terrible decision.  It’ll take time to deal with it as it works its way through the system.  But it turns the whole notion of a preliminary injunction on its head and the standards for that.

And it is a result-oriented decision.



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