What's Next for Arizona?

Judge Susan Bolton’s 36-page opinion in the Arizona immigration case is about to become one of the most closely scrutinized legal opinions ever written by a trial-court judge. Truth be told, I don’t think it will hold up well.

Judge Susan Bolton

For supporters of the Arizona law, though, let me start with the good news in the opinion. Arizona’s prohibition on local officials interfering with the enforcement of federal immigration law was upheld, as was the ability of ordinary citizens to bring suit for violations of that prohibition. Sanctuary cities are out.

In addition, the new state law crime for impeding traffic while stopping to pick up day laborers, the state law crime for knowingly transporting or harboring illegal aliens, and the state law crime for knowingly employing illegal aliens, were all upheld. Those go into effect on Thursday, July 29, as originally scheduled. As Judge Bolton noted in footnote 19, state laws addressing illegal immigration that merely criminalize specific conduct already prohibited by federal law are not unconstitutional.

That last point is important, and legally correct. But it is hard to square with the earlier part of Judge Bolton’s opinion, where she enjoins enforcement of other parts of the Arizona law because, in her view, the federal government was likely to prevail in its argument that the Arizona law was pre-empted by federal law. For three of the four provisions blocked by Judge Bolton, the state law merely criminalized specific conduct already prohibited by federal law. There is nothing unconstitutional about that.

ICE Detention Center

Take the provision that has garnered most of the national attention, Section 2, which requires local law enforcement to check the immigration status of arrestees if there is reasonable suspicion that they are in the U.S. illegally. Federal law – Title 8, Section 1373(c) — already requires the Department of Homeland Security to respond to immigration status requests from state and local law enforcement “for any purpose authorized by law.”

Buried in a footnote in the opinion, Judge Bolton concedes that state and local law enforcement already have the discretion to verify immigration status if they have reasonable suspicion. But in her view, the state’s mandate to its own law enforcement officers to do what they already had discretion to do would somehow create such a burden on Homeland Security that the Arizona law must be preempted in order to protect the Federal Government’s apparently scrawny resources.
I’ve got a recommendation for Homeland Security — call Blockbuster and see how they verify identity before renting a movie. They do it millions of times a day without too much difficulty. And I’ve got a recommendation for local law enforcement in Arizona as well — exercise your discretion to check on immigration status whenever you have a reasonable suspicion; the mandate may be blocked for now, but your discretion is not!

Judge Bolton also blocked enforcement of the new state law requirement that aliens carry immigration papers proving they are in this country legally. But again, this merely parallels a requirement of existing federal law, specifically, Section 1304(e) of Title 8, which requires an alien to carry a certificate of alien registration. In fact, the Arizona law expressly incorporates the federal law in its provision, and the penalty for violation is identical to that provided by federal law--$100 fine and up to 30 days in jail.

Judge Bolton also makes several technical but important errors in her legal analysis. She broadly interpreted one provision of the law, over a narrower interpretation given by Arizona officials to its own law, and then held that, as broadly interpreted, the law was probably invalid. Not the way it is supposed to work. Courts normally will give a statute a narrow interpretation if to do so saves it from being unconstitutional.
Judge Bolton also went out of her way to speculate how the law “might” be implemented in unconstitutional ways, but on a facial challenge, as this was, the requirement is whether the law would be unconstitutional in all or most of its applications, not whether it might be unconstitutional in a hypothetical application.

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Arizona will undoubtedly appeal to the Ninth Circuit, and if the state gets an honest legal assessment from that court, the injunction should be lifted in short order. If not, well, there is always the Supreme Court, and the Ninth Circuit is the most frequently reversed Circuit Court of Appeals in the nation. One way or the other, Arizona’s ability to protect its citizens from the onslaught of illegal immigration, by simply directing its law enforcement officers to enforce federal law, is going to be upheld.