Another Day Another Federal Assault on Liberty

July 29, 2010

Yesterday’s federal court decision to enjoin enforcement of the Arizona immigration law is the latest example of a virtually unchecked renegade federal government waging war against the states and against the liberties of its citizens.

We’ve seen that Obama will exercise any power he can get away with, from strong-arming secured creditors and favoring unions as he gobbled up automakers to making a mockery of due process with his Oval Office shakedown of BP. But he might have reached a new low with his assaults on the sovereignty of the people of Arizona.

Indeed, Judge Susan Bolton’s disgraceful decision to grant an injunction against Arizona’s new immigration law is, in the words of Mark Levin, “abominable,” but let’s not forget that this case wouldn’t have been before Judge Bolton if Obama’s Justice Department hadn’t initiated it.

And let’s not pretend that Obama’s motives are anything other than political, the law and the rule of law be damned. He told Sen. Jon Kyl in a private meeting that he was unwilling to secure our borders because it would decrease his chances to pass “comprehensive immigration reform.”

So when Arizona attempted to exercise a little self-help and work on securing its own border by passing a law carefully crafted to mirror the federal immigration law and encourage its enforcement, the all-powerful Obama feds came down on it like a furious king against his disobedient subjects.

In a saner world, freedom lovers could have rested easy, knowing that an impartial, Constitution-respecting judge would summarily reject the administration’s unlawful scheme to thwart Arizona’s sovereignty by superimposing its own nonenforcement policy.

But in her decision, Clinton appointee Bolton demonstrated how dangerous judicial activism can be to our individual liberties and democratic processes. It’s one thing for a court to invalidate a law because it doesn’t pass constitutional muster; it’s quite another for it to misstate the facts, the legislation and the Constitution to reach a preordained decision.

Just consider three outrages of this decision highlighted by other commentators, any of which, individually, makes a mockery of justice. Andy McCarthy properly observes that Judge Bolton stretched the federal pre-emption doctrine to absurd limits. Under Bolton’s specious reasoning, state law must be struck down not only if it is inconsistent with federal law, which the Arizona law is not, but also if it somehow contradicts federal law enforcement practices. Because the Obama feds refused, as a matter of policy, to enforce their own law against illegal immigration, the state could not be allowed to pass a law promoting enforcement. Note that nothing in the actual Constitution or case law justifies such an extrapolation of pre-emption doctrine. But such trifles don’t impede an administration and court determined to keep the immigration floodgates open at any cost.

Mark Levin notes that Judge Bolton correctly enunciated the rigorous legal standard required for a plaintiff to succeed in a “facial challenge” to a law’s constitutionality but then proceeded to ignore the rules she had just affirmed. She acknowledged that for the federal government to have prevailed, it would have had to show the law could never be applied in a constitutional fashion. That is, “a facial challenge must fail where a statute has a ‘plainly legitimate sweep.'” But she ignored that limitation on her authority, just as she violated another principle she paid lip service to in her opinion: that the court was not to speculate about hypothetical cases.

Heather Mac Donald exposes Judge Bolton’s acquiescence to the Obama administration’s “carefully cultivated fiction” that the administration’s primary motive with the lawsuit was to prevent the application of the law to legal aliens. The judge ignored uncontroverted testimony and legal briefs from Arizona officials stating that only people who were reasonably suspected to be illegally in the country would be required to prove their legal status. So to protect legal aliens from a law that doesn’t apply to them, she refuses to apply the law to illegals.

Cynical observers of the political scene lazily dismiss each unfolding Obama outrage as merely Washington politics as usual. But with this administration, we’re witnessing power grabs that are different in kind rather than degree.

Our liberties depend on our preserving the integrity of the Constitution and the mechanisms it established to deter tyranny. To the extent we dismantle those safeguards, we imperil our freedoms.

When the political class is filled with those who are ideologically committed to certain political ends irrespective of the legality of the means used to achieve them, our system of checks and balances breaks down, which is one reason John Adams warned, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

November’s elections cannot come fast enough.