No ruling on S1070, judge may halt portions of law
Published: July 22, 2010 at 4:44 pm
A federal judge did not rule on whether she would prevent Arizona’s strict new illegal immigration law from going into effect, but indicated that she could issue an injunction against portions of S1070 while leaving the rest of the law intact.
U.S. District Judge Susan Bolton on July 22 heard arguments in two of the seven lawsuits filed against S1070, both of which seek an injunction to prevent the law from going into effect on July 29. The first suit was brought by the American Civil Liberties Union, Mexican-American Legal Defense and Education Fund and other groups, while the second was filed by the U.S. Department of Justice.
Both lawsuits claim S1070 should be temporarily blocked because it infringes on the federal government’s authority to enforce immigration law. Bolton said she would review each section of the law, but said she would not issue a blanket injunction against the law as a whole.
At the start of the second hearing, Bolton said she did not need to hear any more discussion of the provision in S1070 that essentially makes it a state crime for a person to be in the country illegally, telling Department of Justice attorney Edwin Kneedler, “I have a full grasp of Section 3 and the preemption issues with respect to (Section) 3.”
But Bolton said she had serious questions about provisions that require officers to check people’s immigration status if there is a reasonable suspicion they are in the country illegally and allow warrantless arrests by police officers. Bolton grilled attorneys for the ACLU and federal government on how S1070 would affect federal immigration law, and prodded the state’s attorney on requirements that police officers check the status of anyone arrested.
Kneedler pointed to areas in which he said S1070 would inhibit federal priorities or enforcement of immigration law. He said Immigration and U.S. Customs Enforcement has explicitly chosen to focus its resources on illegal immigrants who have committed other crimes, and said the agency could be overwhelmed with requests from officers who want suspects’ immigraton status checked.
“Can you really say this is going to be preempted because we’re going to get too many calls?” Bolton asked Kneedler.
Bolton said ICE could make its determinations regarding who should be removed from the country and who shouldn’t. Only federal authorities, not the state, can make that decision, she said.
“If they choose not to pursue federal enforcement … isn’t that Immigration and Customs Enforcement’s decision?” Bolton asked.
Kneedler also said S1070 could have a negative impact on foreign policy. For example, he said, Mexican lawmakers are stalling on the renewal of international agreements and several of the country’s governors cancelled a meeting in the United States because of the law.
“Those foreign policy consequences are the very reason why the United States government has to be ultimately responsible” for the way immigration policies are carried out, Kneedler said.
Bolton at times focused on language that she felt was too vague. The provision calling for law enforcement agencies to check the immigration status of anyone who is arrested is problematic, she said, because the law does not say whether citations, or situations where someone is detained but released at the scene, qualify as arrests.
She also questioned why the section permitting warrantless arrests was included in S1070, because police can already do so in many situations. Even the Arizona Peace Officer Standards and Training Board, which drew up enforcement guidelines for every law enforcement agency in the state, has questioned those provisions, she said.
“This is another place where AZPOST and I are mystified,” Bolton told John Bouma, the lead attorney for the State of Arizona, during the first hearing.
Bouma acknowledged that the warrantless arrest provision may have been “inartfully worded.” But he said most of the arguments made against S1070 were based on hypothetical situations, such as predictions that drivers from states that issue driver’s licenses to illegal immigrants could be subject to extra scrutiny, or that ICE would be overwhelmed with calls from police officers asking that people’s immigration status be checked.
“That’s the problem with these facial challenges is standing around making situations that might happen,” Bouma said.
Speaking with reporters in front of the Sandra Day O’Connor United States Courhouse after the hearings ended, Bouma said some portions of S1070 could be halted without having a serious impact on the law as a whole. But he sounded optimistic that most of it would become law.
“I think it’s distinctly possible that she will look through each section of the law and make an individual decision. She’s not going to strike down 1070,” Bouma said.
Rep. John Kavanagh, a vocal supporter of S1070, echoed those sentiments.
“The fact that she has said that she’ll look at each part separately and not take the whole thing down if one part is bad also speaks well for us. So I’m optimistically hopeful that, if not all, almost all of this law is going to survive,” the Fountain Hills Republican said.
Gov. Jan Brewer, who signed S1070 on April 23, attended the hearing on the Department of Justice case. Afterward, she expressed confidence that the law would go into effect as scheduled.
“Judge Bolton has a very good grasp, in my opinion, of the issues that we’re undertaking in there today,” she said. “I’m very confident that Arizona will prevail.”
Nina Perales, an attorney with MALDEF, said she was encouraged by Bolton’s line of questioning on issues like warrantless arrests, immigrants’ registration documents and the employment of illegal immigrants.
“That means the judge herself is thinking very hard about what does this law mean and what is the impact going to mean,” Perales said after the first hearing. “The judge asked about all those things in a very specific way.”