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.

Why Judge Susan Bolton blocked key parts of Arizona's SB 1070

      
US District Judge Susan Bolton agreed to block the section of the law that required local and state law enforcement officials to check the immigration status of those they suspected were illegal immigrants.

Judge Susan Bolton

That was the provision that critics said would lead to racial profiling.

Judge Bolton’s decision is an important victory for the Obama administration in the face of a rising tide of concern among several states that the federal government is not effectively enforcing immigration law or effectively protecting US borders.

Five states have introduced legislation similar to Arizona’s law, and 20 others are reportedly considering it.

The ruling adds fuel to an already heated national debate over US immigration policy and sets the stage for more rounds of litigation in a case that could eventually make its way to the US Supreme Court.

Illegal Immigrant Protest

In her ruling, Bolton also blocked a portion of the law that required state officials to check the immigration status of anyone in custody in Arizona before they were released from jail.

The judge said the state measure was preempted by federal law because such checks would swamp federal immigration officials who are pursuing different priorities.

“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,” Bolton wrote.

The judge said the same problem would arise under the provision requiring police officers to check the immigration status of suspected illegal immigrants. “Federal resources will be taxed and diverted from federal enforcement priorities as a result of the increase in requests for immigration status determination(s),” she said.


The judge said the provision would also create an impermissible burden on immigrants who are lawfully present in Arizona.

Bolton concluded that there was a likelihood of irreparable harm to the interests of the federal government if certain provisions of SB 1070 took effect.

“The court by no means disregards Arizona’s interests in controlling illegal immigration and addressing the concurrent problems with crime, including the trafficking of humans, drugs, guns, and money,” Bolton wrote.

“Even though Arizona’s interests may be consistent with those of the federal government, it is not in the public interest for Arizona to enforce preempted laws,” she said.

Opponents of SB 1070 said the law would lead to illegal racial profiling by state and local law enforcement officials. Supporters countered that the state law was necessary to make up for lax and ineffective border enforcement by the federal government.

The Arizona law was deliberately written with tough and aggressive measures designed to encourage the estimated 460,000 illegal immigrants in Arizona to go home.

SB 1070 sought to make violations of federal immigration law into violations of Arizona law, thus empowering state officials to arrest illegal immigrants under certain circumstances.


In agreeing to issue a preliminary injunction, Bolton embraced arguments by Justice Department lawyers and the Obama administration that SB 1070 is preempted because it interfered with the executive branch’s control over immigration policy.

U.S. Justice Department

The Obama administration has said its priority is to focus on those illegal immigrants who engage in crime or are otherwise dangerous. Government lawyers said Arizona was attempting to enforce its own immigration policy.

The judge agreed. She said the state statute created a significant enough conflict with the administration’s policies to require judicial intervention.

Arizona Governor Jan Brewer

 Arizona officials had argued that the federal-state disputes that exist are over the intensity of enforcement, not the letter and substance of federal law. They said the Arizona law was written to mirror the provisions of federal immigration law and should thus be appeal proof.

But Bolton, an appointee of President Bill Clinton, said the government would likely suffer irreparable harm should various provisions of the law take effect.

Also blocked by the judge was a section of the law that made it a state crime for any foreign resident of Arizona to fail to carry federally-issued immigration documents at all times. Federal law requires that such documents be carried at all times, but federal officials do not enforce it.

The state law sought to enforce it. In enjoining this part of the law, Judge Bolton said that establishing state penalties for violating a federal requirement altered the penalties established by Congress and thus stood as “an obstacle to the uniform, federal registration scheme.”


Bolton’s injunction also blocks the portion of the law that made it a state crime for an illegal foreign resident in Arizona to solicit, apply for, or perform work.

Border Patrol Search Illegal Immigrant

Much of the rest of the law remains intact and those provisions are expected to take effect Thursday.

The judge’s ruling means that Arizona officials will begin enforcing the remaining parts of the law, even while litigation about the entire law – and the enjoined sections – continues in the courts.

Among that part of the law that will now take full effect is a provision allowing Arizona residents to sue any state office or agency for failing to fully enforce immigration laws.

Also still in the law are provisions creating a new state crime of human smuggling, stopping a motor vehicle to pick up day laborers, and knowingly employing illegal foreign residents.

SB 1070 was passed after years of dissatisfaction among many Arizonans with federal efforts to police the lawless border region with Mexico. Across the border, drug cartels have been waging a bloody tug-of-war with the Mexican government. Drug and human smugglers have become increasingly active in Arizona’s rural border areas.


The issue is complicated by politics and the approaching mid-term congressional elections. Democratic strategists are hoping the continuing controversy drives a wedge between Hispanic voters and the Republican Party.

Republicans, on the other hand, are hoping more Americans are concerned about crime and border security than complaints about tough enforcement efforts. But some Republicans are worried about this strategy in the long term given the growing political clout of the Hispanic community in the US.