Legal Opinions on What is Next for Arizona

PHOENIX 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.