In a well reasoned order handed down by Judge Susan R. Bolton of the United States District Court for the District of Arizona, the most unreasonable, atrocious and unconstitutional aspects of Arizona’s Senate Bill 1070 were blocked, or rather, enjoined from taking effect with the remainder of the legislation on July 29, 2010. In what almost certainly will set the stage for an appeals process culminating in review of state government’s power to supplement federal law in the area of immigration, Arizona has appealed this ruling to the United States Circuit Court for the Ninth Circuit. If the Ninth Circuit rules on the matter before the end of the year, the case could be heard by the Supreme Court of the United States in its next session, and possibly decided within a year from now.
While the most egregious aspects of SB1070 have been strategically excised from the whole of the bill by the order of Judge Bolton, the bill ultimately stands and the remaining portions went into effect July 29, 2010. Because the process for enjoining and appealing this bill as well as its ramifications may not be entirely clear, I have briefly summarized the judge’s legal opinion and the effects that this ruling has on SB1070 in board terms. As a reminder, this attorney and The Law Firm of Shihab & Associates has offered the following aspects of Arizona law for the purposes of public discussion and discourse only. This lawyer does not suggest nor insinuate that he is licensed practice civil or criminal law in the state of Arizona.
Senate Bill 1070 took effect in Arizona on July 29, 2010. Judge Susan Bolton only blocked certain parts of the bill from taking effect with the rest of the bill. Such a legal challenge and outcome was fully anticipated by the drafters of SB1070, who made certain aspects of the bill severable, or able to be separated, without destroying the entire bill. The US Department of Justice, the adversary to SB1070 in this instance, specifically chose certain aspects of the bill to challenge, leaving other aspects unopposed. Some of the most important aspects of SB1070 that remain in effect or fully enforceable by officers in Arizona are as follows:
- Provision allowing residents of the state to sue any state official or agency that restricts enforcement of federal immigration law to any extent less than the maximum allowed by federal law;
- Creating a crime for stopping a vehicle to pick up day laborers if the stopping creates an impediment to normal movement of traffic;
- Creating crimes for intentionally or knowingly employing unauthorized aliens; and
- Transporting or encouraging unlawfully present aliens to come to Arizona.
Interestingly, law enforcement officers and public employees are caught in a catch 22 situation regarding their role in Arizona’s immigration scheme. Specifically, all agencies of the State of Arizona are required to carry out federal law in regard to federal immigration rules or risk being sued. However, it is reasonable to believe that most employees of the state of Arizona are not experts in Federal Immigration law, leaving such agencies and employees potentially open to suit for actions they do not know are unlawful.
The following are aspects of the bill that have been enjoined, or stopped from enforcement, by the federal court:
- Requirement that under reasonable suspicion of unlawful presence in the United States, that police officers make a reasonable efforts to ascertain the immigration status of the person, and ascertain the immigration status of a person upon release from arrest;
- Creation of a crime for failure to apply for or carry immigration papers;
- Create a crime for an unauthorized alien to solicit, apply for or perform work; and
- Authorize the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable (formerly called deportable) from the United States.
Despite the injunction of this law, there are aspects of the enjoined portions of SB1070 that seem to have overlapping effects with current law enforcement procedure in Arizona. Sheriff Arpaio of Maricopa County (the Phoenix metro area) of Arizona is still conducting his “sweeps” pulling over cars for minor violations and then taking the opportunity to lead the detained person down a path of questioning to eventual disclosure of his or her immigration status. While it is unclear where to draw the lines between enforceable state law and unenforceable enjoined provisions of SB1070, what is clear is that violating a federal injunction is grounds for a charge of contempt of court. In the spirit of SB1070, it is only just that such a person violating an order handed down by a federal judge should be prosecuted to the full extent of the federal law.
Discussion of the Enjoined Sections of SB1070
The legal ruing handed down by the federal court in this case is what is known as a preliminary injunction. This order stops conduct from being carried out as requested by the moving party from occurring while the merits of the case have yet to be decided, i.e. the case has not yet gone to trial. This is essentially a temporary stop. The ruling on a temporary injunction may be appealed to the next highest court. This is the action that the State of Arizona has taken, asking the Ninth Circuit, the court above the US District Court for Arizona, to hear its argument.
Judge Bolton took the most appropriate action by only enjoining or blocking the aspects of the bill that were likely be won by the US Department of justice at trial, while letting other aspects of the law go into effect. The drafters of SB1070 intentionally wrote the bill to allow this type of severability, or the ability for sections of the law to be blocked without destroying the entire bill. As a consequence, Judge Bolton has essentially narrowed the issues that will be argues at the next level to the issues below.
Compulsory Determination of Immigration Status Upon Arrest
The Court decided to enjoin this provision on the grounds that requiring police officers to make such a determination would be in contradiction to the comprehensive scheme of immigration laws enacted by Congress, increase the time needed to detain a person for offenses and inevitably sweep up legal immigrants into the fray. Additionally such determinations, especially is conducted by all states, impermissibly burden the federal database for checking immigration status.
Compulsory Determination of Immigration Status Upon Lawful Stop, Detentions or Arrests
Judge Bolton decided this issue on similar grounds to the issue above, except for one additional and important point. Specifically, the Judge pointed out that there are many aliens who are lawfully present in this country who are not required to carry immigration documentation on them at all times or do not have easy access to documentation that could prove their nationality.
Crime of Not Carrying an Alien Registration Document
This aspect of SB1070 was deftly handled by the judge under the premise that the determination of nationality is not a shared duty between the federal government and the states, but rather a federal power, superior to the states. It is established law that the states cannot conflict or add to the federal law in this area. Here, Arizona attempted to create state penalties for a violation of federal law, complementing or adding to the federal law.Under the US Constitution and basic tenants of the separation of powers, this provision could not stand.
Creating A Crime for an Unauthorized Foreign National to Knowingly Apply for or Perform Work
The court blocked a provision of SB 1070 that would create a class A misdemeanor for foreign nationals who are not authorized to work, to apply for or perform work in Arizona. Wisely, the court in this instance recognized that Congress had preempted state action in regard to establishing regulations for alien work authorization. Specifically, the court listed the numerous provisions of federal immigration law that are targeted specifically at the punishments for an authorized work. Additionally, the court cited the legislative history of the IRCA’s drafting in which Congress considered creating penalties for the employees working without authorization, then rejected such action.
Allowing Police to Arrest anyone if the Officer has probable cause to believe that a person has committed an offense which makes him or her removable
The court stated that on its face, this provision really added nothing new to the enforcement of Arizona criminal law. However, at the hearing, it became evident that the provision was meant to be able to allow for the warrantless arrest of a foreign national if he or she had committed a crime in a state other than Arizona, which the officer had probable cause to believe would make him or her removable from the United States. Anyone who has ever come into contact with the system for determining removability in the United States knows that such a determination of removability is a complex, legal matter to be adjudicated only by the immigration courts. Knowing this, and considering that legally present aliens would be swept up into the enforcement of this bill, this provision was enjoined accordingly.
Where does the fight over SB1070 go from here?
The State of Arizona has appealed to the US District Court for the Ninth District in order to argue against the enjoined aspects of the bill. The Circuit Court has recently decided that it will not hear the case on an expedited schedule, and the case will be heard at the court’s normal pace. From there, the Supreme Court of the United States may decide to hear arguments on any decision made by the Ninth Circuit.