SANTA FE, NM July 29, 2010
—
One day before Arizona's new
tough immigration law was supposed
to go into effect, a federal judge
temporarily blocked some of its
controversial provisions.
Some aspects of the law will be
carried out on schedule. But Judge
Susan Bolton of Federal District
Court in Phoenix issued a
preliminary injunction against
sections that required immigrants to
carry papers with them at all times
and that called for the police to
check a person’s immigration status
while enforcing other laws. She also
delayed the part of the law that
made it illegal for undocumented
workers to solicit employment in
public places.
Her decision will be appealed, and
is only one step on a long road that
may end up in the Supreme Court.
What is the significance of the
judge's decision, legally and
politically?
A Bad Law, a Careful Judge
Gabriel (Jack) Chin is the Chester
H. Smith professor of law at the
University of Arizona.
Judge Susan Bolton’s opinion
enjoining key sections of SB 1070 is
respectful, careful and legally
sophisticated. Its core principle,
recognized since the Supreme Court
struck down the immigration laws of
California, Louisiana and New York
in the 1870s, is that the national
government has exclusive power over
immigration.
Arizona’s purposes in charting its
own course were not irrational or
unworthy. But the Constitution
commits immigration decisions to a
different government. While states
can cooperate, the opinion notes
Congress assigned primary
immigration enforcement
responsibility to the Department of
Homeland Security and Department of
Justice, not to the states. Judge
Bolton did not rule that Arizona’s
purposes in charting its own course
were irrational or unworthy, only
that the Constitution commits
immigration decisions to a different
government.
The judge had strong grounds to find
SB 1070 interfered with federal law.
Even if state law shares federal
goals, state law can conflict if it
seeks those goals through different
methods. For example, federal law
imposes criminal penalties on
employers of people not authorized
to work under federal law. After
consideration, Congress decided not
to impose criminal sanctions on
individual employees. SB1070 adopted
the approach Congress rejected;
therefore, Judge Bolton enjoined it.
Judge Bolton also recognized state
regulation risks affecting lawful
permanent residents and U.S.
citizens. Accordingly, she enjoined
SB1070’s requirement the police
check immigration status of people
when stopped.
SB 1070’s defects are likely
unfixable. It seeks “attrition
through enforcement” and to
“discourage and deter unlawful entry
and presence of aliens.”
Accordingly, its purpose is
essentially to induce
self-deportation, a federal
responsibility, and to override
decisions assigned by Congress to
federal agencies.
Assuming the decision stands up on
appeal and marks the end of SB 1070
as law, it will not represent the
end of SB1070 as political
firestorm. First, as happened after
the Proposition 187 litigation in
California, Congress may authorize
states to exercise the powers Judge
Bolton just enjoined. And more than
10 million undocumented people
continue to reside in the United
States; no one thinks it is
desirable for millions of people to
live in the shadows.
Perhaps the controversy unleashed by
SB 1070 will motivate Congress to
enact urgently needed comprehensive
immigration reform.
Carefully Crafted
Stephen Yale-Loehr is adjunct
professor of immigration law at
Cornell Law School.
Judge Bolton issued a carefully
crafted decision. Procedurally, this
was just a preliminary decision. She
noted preserving the status quo
through a preliminary injunction is
less harmful than allowing state
laws that are likely pre-empted by
federal law to be enforced. She
upheld parts of the Arizona law and
struck down other parts. Her final
ruling may differ. And higher courts
could overturn today's decision.
Arizona can cure some of the
problems the judge cited.
Substantively, Judge Bolton noted
parts of the Arizona immigration law
went too far. For example, legal
green card holders and U.S. citizens
could be detained for long periods
of time while their legal status is
being checked. This could raise
Fourth Amendment problems.
Judge Bolton also pointed out parts
of the Arizona law impede on federal
immigration law. For example, the
court held Arizona’s new crime for
working without authorization, set
forth in Section 5(C) of S.B. 1070,
interferes with federal immigration
law.
Arizona could cure some of the
problems outlined by Judge Bolton.
For example, the state could revise
its penalties for failing to
register to match federal penalties.
But it is unlikely the Arizona
legislature could fix all of the
problems mentioned in the decision.
As Judge Bolton noted, determining
"whether an alien’s public offense
makes the alien removable from the
United States is a task of
considerable complexity that falls
under the exclusive authority of the
federal government."
Congress must reform our broken
immigration system. Congress'
failure to do so, however, does not
allow states to enact their own
patchwork of immigration laws.
U.S. Law Prevails
Jennifer Chacon is a professor at
the School of Law at the University
of California at Irvine. She is also
the senior associate dean of
academic affairs.
Judge Bolton’s order granting in
part and denying in part Arizona’s
SB 1070 relies on the doctrine of
pre-emption to temporarily halt the
implementation of some of the most
controversial provisions of the
Arizona law. As Bolton’s decision
states, “The Supreme Court has
consistently ruled the federal
government has broad and exclusive
authority to regulate immigration….”
The judge is right Arizona officials
did not have the power to determine
if someone was "removable." The
State of Arizona had argued SB 1070
did not interfere with the federal
regulation of immigration law, but
rather complemented federal law, and
was therefore not “pre-empted.” It
is true the law does not create new
standards for the admission or
deportation of noncitizens. So why
did Judge Bolton view the law as
pre-empted?
As a practical matter, officials in
Arizona are not empowered to make a
final determination as to whether or
not an individual is lawfully
present. This is the responsibility
of the federal government. Moreover,
while the Arizona law would have
empowered state and local officials
to make a warrant-less arrest of a
person where there was “probable
cause” the person had committed an
offense that makes them “removable”
from the U.S., the question of
whether someone is “removable” is
incredibly complex, and in many
cases must be adjudicated in a
federal immigration court.
While Arizona officials would have
been empowered under the
controversial provisions of SB 1070
to arrest and detain people -- or
prolong their initial stops, arrests
and detentions --- on suspicion of
immigration violations or the
commission of removable offenses,
the federal government has to make
the ultimate determinations as to
the legal status and deportability
of these individuals. Even setting
aside legitimate concerns the law
might aggravate widespread practices
of racial profiling in law
enforcement, and even assuming the
best possible training of all state
and local officials charged with
implementing the law, the
controversial and now enjoined
provisions of the law created a very
real possibility U.S. citizens and
lawfully present noncitizens would
face protracted stops and arrests
while their immigration status was
sorted out.
And only the federal government is
empowered to sort out those status
questions definitively. In previous
cases acknowledged by Judge Bolton
in her order, courts have found
comparable situations to warrant a
finding of pre-emption. Her legal
reasoning was sound.
Even without the Arizona law, our
failing immigration policy has put
numerous nonviolent noncitizens and
sometimes citizens behind bars – in
immigration detention as well as in
prisons and jails. The specter of
many more individuals waiting in
detention for word from an overtaxed
federal immigration bureaucracy was
mitigated by today’s decision.
But the decision unfortunately
cannot address the obvious need to
overhaul the immigration system that
has given us a bloated system of
immigration detention, a federal
docket choked with the prosecution
of immigration-related crimes and a
labor market distorted by large
numbers of unauthorized workers. The
federal government occupies this
field needs to do a much better job
of tending to it.
The Constitutional Mainstream
Kevin R. Johnson dean and
Mabie-Apallas professor of public
interest law and Chicana/o studies
at the University of California,
Davis, School of Law.
Judge Susan Bolton of Federal
District Court in Phoenix issued a
preliminary injunction barring key
provisions of Arizona SB 1070 from
going into effect on Thursday. Other
provisions of the law, such as the
prohibition on Arizona officials
from limiting enforcement of the
U.S. immigration laws, are not
subject to the injunction and will
go into effect.
The judge's order finds the U.S. is
likely to prevail on its claims the
law's provisions most directly
impinging on national immigration
regulation are pre-empted by federal
law. Although sure to be criticized
by Arizona Gov. Jan Brewer and the
law’s other supporters, Judge
Bolton’s order takes the concerns of
the Arizona legislature most
seriously, noting at the outset of
the order SB 1070 was passed
“against a backdrop of rampant
illegal immigration, escalating drug
and human trafficking crimes, and
serious public safety concerns.”
Rather than bluntly strike down the
entire law, she carefully looked at
each section and analyzed whether
the specific provision of the state
law intruded on the federal power to
regulate immigration, which the
Supreme Court in the 1976 decision
of DeCanas v. Bica declared to be
“unquestionably exclusively a
federal power.”
The order finds the U.S. government
is likely to prevail on its claims
the portions of SB 1070 that most
directly impinge on federal
immigration regulation are
pre-empted by federal law.
Importantly, the court concludes the
portion of Section 2 – one of the
central, and most controversial,
portions of the Arizona law -- that
requires “an officer to make a
reasonable attempt to determine the
immigration status of a person
stopped, detained or arrested if
there is a reasonable suspicion that
the person is unlawfully present in
the United States,” is likely to be
pre-empted by federal law. In
contrast, the court did not enjoin
the portion of Section 5 that makes
it a crime for a motor vehicle to
pick up day laborers.
The Sacramento Bee: Arizona law will
likely collide with the Constitution
– and lose. I think it significant
the court made its initial
substantive ruling in the challenges
to SB 1070 in the case brought by
the U.S. government, United States
v. Arizona. Civil rights groups made
similar federal pre-emption
arguments in their challenges.
However, the federal pre-emption
argument is more powerfully made
when the federal government asserts
a state is intruding on its power to
regulate immigration than when the
same arguments are made by groups
representing private parties. In
addition, the U.S. government
prudently limited its legal
challenges to the Arizona law to
those sections that most directly
intruded on the federal power to
regulate immigration.
In my opinion, Judge Bolton’s order
will withstand an appeal to the U.S.
Court of Appeals for the Ninth
Circuit and, if reviewed, by the
U.S. Supreme Court. It faithfully
follows relevant precedent and is
firmly within the constitutional
mainstream.
