Federal courts have rejected immigration laws in other states that aimed for results similar to those prescribed by Arizona’s S1070, but supporters of the Arizona law say they learned a lesson from those court cases and made sure to avoid repeating past mistakes.
Two court rulings, in particular, offer hope to those who want to wipe out the law. Yet both were used as case studies for the people who drafted Arizona’s immigration law.
In 1997, a federal judge in California struck down a landmark law that gave local law enforcement the authority to enforce immigration laws, saying it infringed on the federal government’s right to enforce those laws. And in Hazleton, Pa., a judge invalidated a local ordinance forcing landlords to check their tenants’ immigration status on similar grounds.
Other state and local illegal immigration laws have withstood such court challenges. In Arizona, a federal judge ruled that the state’s employer sanctions law did not violate the U.S. Constitution’s supremacy clause, which states that federal laws can preempt and invalidate conflicting state laws.
When the courts begin sorting through the challenges to S1070, federal preemption and the U.S. Constitution’s supremacy clause likely will determine the fate of what is regarded as the toughest state-level illegal immigration law in the U.S.
“The idea is you don’t want 50 different immigration systems in 50 different states. It would just be absolutely unworkable,” said Victor Miramontes, an attorney with MALDEF, the Mexican American Legal Defense & Educational Fund. “Any time any state tries to intervene or pile on their own immigration regulations, it’s a violation of that singular authority of the federal government.”
But attorneys who helped Sen. Russell Pearce draft S1070 said the bill is designed to avoid the main problems that were found in California’s Proposition 187, which was passed by voters in 1994 and struck down in U.S. District Court three years later.
Mike Hethmon, an attorney with the Washington, D.C.-based Immigration Reform Law Institute who counseled Pearce on S1070, said Prop. 187 was stricken down because it included language that would have given the state responsibilities that conflicted with federal authority.
“The critique of 187, if you will, has sort of become really the baseline of the advice we give legislators or advocates or activists when they call us up,” Hethmon said.
U.S. District Court Judge Mariana Pfaelzer ruled that Prop. 187 violated both federal supremacy on immigration law and federal welfare laws. The California law required law enforcement officers to check the immigration status of everyone they arrested, prohibited local governments from interfering with that mandate, and barred illegal immigrants from receiving public benefits, including public education.
Hethmon said the California case can be used as an indicator of at least two state acts that the courts likely would consider violations of the federal supremacy clause: States cannot remove illegal immigrants from the U.S. themselves, and states cannot violate the broader concept of trying to “regulate immigration,” including regulating activities that non-citizens can take part in, such as public education.
Part of the basis of Pfaelzer’s ruling, Hethmon said, was a “magic words analysis” in which she struck down portions of Prop 187 due to language that differed from relevant federal laws. For example, he said, Prop 187 used the term “illegal alien” instead of “non-qualified alien,” a term used in federal welfare statutes.
To avoid that pitfall, the language in S1070 was written as similar to federal law as possible. Certain provisions in Arizona’s law, such as the one that makes an illegal immigrant’s presence in Arizona a misdemeanor trespassing charge, were changed to mirror the language in federal immigration laws.
Paul Bender isn’t as certain that S1070 can withstand legal scrutiny. Bender, a professor at Arizona State University’s Sandra Day O’Connor College of Law, said the federal government has a vested interest in maintaining a uniform system of immigration controls across the country. An attempt by any state to deviate from that, he said, would likely run afoul of the supremacy clause.
“If you have a pattern of federal law regulating something, I think it’s very unlikely that the federal government means to have the states enforce the same laws at their own discretion,” Bender said. “For example, what would you think if a state started arresting people and convicting them of a state crime of evading federal income tax?”
The most frequent criticism of the law is that it will subject Hispanics to racial profiling, which would be a violation of the 14th Amendment to the U.S. Constitution. But that argument might fall short until the courts can determine how the law is being enforced.
“The statute is very much open to racial profiling. The problem is that if you’re going to sue now, to me that very much depends on how that’s going to be enforced,” Bender said.
Daniel Barr, an attorney and constitutional expert with the firm Perkins, Coie, Brown & Bain, said he believes S1070 is an open invitation to racial profiling by law enforcement, despite strong language in the law against it. But racial profiling, he said, is likely not the argument that will take S1070 off the books.
“At the end of the day, Senate Bill 1070 may very well be held unconstitutional on preemption grounds before the court even has to get to racial profiling issues,” Barr said.
The National Coalition of Latino Clergy and Christian Leaders filed suit on April 29 against S1070 in U.S. District Court, arguing that the bill violates federal preemption of state laws, and Tucson police officer Martin Escobar filed a lawsuit as well. The American Civil Liberties Union of Arizona, Mexican-American Legal Defense and Educational Fund and National Immigration Law Center also announced that they will seek an injunction against S1070, known as the Support Our Law Enforcement and Safe Neighborhoods Act, on preemption grounds.
In addition, several municipal governments said they would challenge the law on grounds that it places unfunded mandates on local governments.