Brief Blog: July 29, 2010 – SB 1070, Round One

Unless you spent the day watching Tivo’d episodes of Real Housewives of Des Moines, you know that U. S. District Judge Susan Bolton ruled yesterday on the Department of Justice’s  motion for a preliminary injunction to prevent SB 1070 from taking effect today as scheduled. A preliminary injunction temporarily prevents an action from occurring on the grounds that it will cause a litigant – - in this case, the United States – - irreparable harm. The judge must be convinced that the litigant’s claim ultimately is likely to “succeed on the merits” in the courts.

Citing the federal government’s preemptive authority to legislate in the area of immigration, Judge Bolton essentially neutralized 1070 by blocking four key provisions, at least for the time being:

• Portion of Section 2, requiring that an officer 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, and requiring verification of the immigration status of any person arrested prior to releasing that person.  Both these requirements, in Judge Bolton’s view, would unduly burden the suspect or arrestee — who would be detained while his/her immigration status was being checked, which the judge apparently views as infringing on civil rights — and the federal government, which would have to respond to an increased number of requests for immigration status determinations. In an important footnote (law students learn early on to read the footnotes first), Judge Bolton points out that “many law enforcement officials already have the discretion to verify immigration status if they have reasonable suspicion, in the absence of SB 1070.” So Judge Bolton can tolerate the burdens on the suspect/detainee/arrestee (assuming reasonable suspicion) if law enforcement officers choose to check immigration status, but not if they are required to do so. So it’s the free will of the law enforcement officer that concerns Her Honor? This doesn’t appear to be a highly principled or consistent ruling.

• Section 3, making it a crime under state law for an alien to fail to apply for or carry alien registration papers; and a Portion of Section 5, making it a state crime for an unauthorized alien to solicit, apply for or perform work. Both these provisions track federal law almost verbatim. By disallowing Arizona to codify federal requirements, and more importantly to enforce them, Judge Bolton seems to be saying that the federal government has preemptive authority in the area of immigration not only to write laws but also to enforce them  (or not). In other words, if the federal government chooses not to enforce its own laws, Arizona can’t do a darn thing about it. Judge Bolton let stand, the provision that makes it a crime to pick up a day laborer if it impedes the flow of traffic and as well to be picked up as a day laborer in a roadway. Of course, impeding traffic is a traffic violation under existing law.

• Section 6, the authorizing the warrantless arrest of a person who “commits a public offense that would make the person removable from the United States.” The provision as drafted is inexplicably, and most likely unconstitutionally, vague.

Significantly, Judge Bolton let stand the requirement that Arizona officials, agencies, and subdivisions enforce federal immigration laws to the full extent permitted by federal law, along with the right of legal Arizona residents to sue them if they don’t.

As well, Judge Bolton allowed the provision that does away with sanctuary cities in the state of Arizona.

Governor Brewer will file an appeal with the 9th Circuit Court of Appeals asking an appellate panel to lift the preliminary injunction today. Given the high profile of the case, the panel is likely to act fairly quickly. The 9th circuit is famously liberal, but no one knows which judges will sit on the panel.

Whatever the outcome in appellate court,  and it’s unlikely to favor Arizona, the case will make its way to the U. S. Supreme Court in some form. My prediction: Unless there is another change in the make-up of the Court (after Kagan), Arizona wins, 5-4.