Conservatives have criticized Judge Susan Bolton for ruling that a provision of Arizona's immigration statute requiring law enforcement personnel to determine the immigration status of all arrestees is likely unconstitutional. They have argued that Bolton should have ignored the plain language of the statute in favor of a contorted reading of the provision requiring Arizona law enforcement to check the immigration status of “any person who is arrested.”

This suggests that conservatives are willing to toss aside their professed concern over judicial activism in order to win a case about an issue that matters deeply to them.

In a post on National Review's The Corner blog, conservative activist Heather Mac Donald claimed that Bolton participated in “the Obama administration's carefully cultivated fiction” that the concerns over the Arizona immigration law dealt with the treatment of lawfully present immigrants. According to Mac Donald, what the Obama administration really wanted was to maintain a “de facto amnesty” for undocumented immigrants. Mac Donald claimed that in order to support the Obama administration's supposed cover story about the effects on lawful immigrants, Bolton misinterpreted a provision of the law that “required that 'any person who is arrested shall have the person's immigration status determined before the person is released.' ” According to Mac Donald, “any person who is arrested” did not mean “any person” but rather only people for whom reasonable suspicion exists that they are here illegally.

On Fox News, host Arthel Neville allowed Kris Kobach, who helped draft the Arizona law and is running for Kansas Secretary of State, to make similar claims without challenge. Kobach stated:

KOBACH: The judge actually made a rather startling mistake. She misinterpreted the intent of a critical provision of the bill. And the reason that's a mistake is there's a longstanding Supreme Court rule that says when you have a law that's not been implemented yet, the court must give the best possible reading to the bill. In other words, give the bill a reading that would not be in violation of any other law. And instead, what the judge did is give the worst possible reading. I think that's going to make her opinion very difficult to sustain on appeal.

NEVILLE: Let me see if I understood what you said. You said that the judge misinterpreted -- she misread the -- your SB 1070?

KOBACH: Yeah. There was the word arrest is used in Section 2, and what she did is there are multiple interpretations of that word arrest. And she picked the interpretation that would be most problematic, but on a facial challenge, a judge is bound to give the bill the best possible reading to give the state the opportunity to implement it in a constitutional manner. She failed to do this, and I think her opinion is very weak because of that and will probably be flipped on appeal.

In fact, as Bolton made clear in her opinion, the statute unambiguously requires law enforcement officials to verify the immigration status of every person who is arrested and that arguments to the contrary simply do not have any support in the statute's text.

MacDonald's and Kobach's criticism of Bolton's opinion deals with her finding that Section 2(B) of Arizona S.B. 1070 is likely unconstitutional. That section states:

For any lawful stop, detention or arrest made by [an Arizona] law enforcement official or . . . law enforcement agency . . . in the enforcement of any other law or ordinance of a county, city or town of this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person's immigration status determined before the person is released.

Bolton held that both sentences of that section are likely unconstitutional. Regarding the second sentence, she ruled that the requirement that "[a]ny person who is arrested shall have the person's immigration status determined before the person is released" actually means what is says. Bolton noted Arizona's attorneys' argument that the section was not meant to require police to “verify the immigration status of every person arrested.” But Bolton explained that, since the statutory language is clear, she could not accept the arguments by the state's attorneys. From her opinion:

The United States argues that this section is preempted because it will result in the harassment of lawfully present aliens and will burden federal resources and impede federal enforcement and policy priorities. (Pl.'s Mot. at 25-32.)

a. Mandatory Immigration Status Determination Upon Arrest

The Court first addresses the second sentence of Section 2(B): “Any person who is arrested shall have the person's immigration status determined before the person is released.” Arizona advances that the proper interpretation of this sentence is “that only where a reasonable suspicion exists that a person arrested is an alien and is unlawfully present in the United States must the person's immigration status be determined before the person is released.” (Defs.' Resp. to Pl.'s Mot. (“Defs.' Resp.”) at 10.)5 Arizona goes on to state, "[T]he Arizona Legislature could not have intended to compel Arizona's law enforcement officers to determine and verify the immigration status of every single person arrested - even for United States citizens and when there is absolutely no reason to believe the person is unlawfully present in the country." (Id.)

The Court cannot interpret this provision as Arizona suggests. Before the passage of H.B. 2162, the first sentence of Section 2(B) of the original S.B. 1070 began, “For any lawful contact” rather than “For any lawful stop, detention or arrest.” (Compare original S.B. 1070 § 2(B) with H.B. 2162 § 3(B).) The second sentence was identical in the original version and as modified by H.B. 2162. It is not a logical interpretation of the Arizona Legislature's intent to state that it originally intended the first two sentences of Section 2(B) to be read as dependent on one another. As initially written, the first sentence of Section 2(B) did not contain the word “arrest,” such that the second sentence could be read as modifying or explicating the first sentence. In S.B. 1070 as originally enacted, the first two sentences of Section 2(B) are clearly independent of one another. Therefore, it does not follow logically that by changing “any lawful contact” to “any lawful stop, detention or arrest” in the first sentence, the Arizona Legislature intended to alter the meaning of the second sentence in any way. If that had been the Legislature's intent, it could easily have modified the second sentence accordingly.

The United States asserts that mandatory determination of immigration status for all arrestees “conflicts with federal law because it necessarily imposes substantial burdens on lawful immigrants in a way that frustrates the concern of Congress for nationally-uniform rules governing the treatment of aliens throughout the country - rules designed to ensure 'our traditional policy of not treating aliens as a thing apart.'” (Pl.'s Mot. at 26 (quoting Hines v. Davidowitz, 312 U.S. 52, 73 (1941)).) Finding a state law related to alien registration to be preempted, the Supreme Court in Hines observed that Congress “manifested a purpose to [regulate immigration] in such a way as to protect the personal liberties of law-abiding aliens through one uniform national . . . system[] and to leave them free from the possibility of inquisitorial practices and police surveillance.” 312 U.S. at 74.

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. Given the large number of people who are technically “arrested” but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification.

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This requirement, as stated above, is likely to burden legally-present aliens, in contravention of the Supreme Court's directive in Hines that aliens not be subject to “the possibility of inquisitorial practices and police surveillance.” 312 U.S. at 74. Further, 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.