Opponents of S1070 are viewing a federal judge’s injunction as a death knell for the state’s strict illegal immigration law.
Supporters of the law, meanwhile, are hoping U.S. District Judge Susan Bolton’s ruling will be overturned as it works its way through the appeals process.
But the judge’s explanation of why she blocked the core provisions of S1070 from going into effect is a bad sign for the law, legal experts said.
Bolton on July 28 issued an injunction against sections of S1070 that require police officers to determine the immigration status of people they suspect are in the country illegally and make it a state crime to be in the U.S. illegally. Bolton also blocked provisions that allow police the make warrantless arrests and prohibit illegal immigrants from seeking work.
Click here to read the order from Bolton.
The U.S. Department of Justice argued that the law should be struck down because it violates the Supremacy Clause of the U.S. Constitution and that Arizona’s attempts to enforce immigration law are preempted by federal authority. Bolton’s ruling left little doubt that she believes the major provisions of S1070 infringe on federal authority to enforce immigration law.
Bolton did not issue a permanent injunction against S1070, meaning her ruling can be lifted. But legal experts said Bolton put her foot down when she issued the injunction.
“She is ruling on the constitutionality of the law itself, regarding whether it’s preempted by federal law,” said Daniel Barr, an attorney with the firm Perkins Coie Brown and Bain and an opponent of S1070. “There may be other issues that come to play, but the big issue in this case has always been preemption.”
Gov. Jan Brewer has said the state will appeal Bolton’s ruling to the U.S. Ninth Circuit Court of Appeals, and to the Supreme Court if nessecary.
The appellate court probably won’t hear arguments until early 2011 and the Supreme Court likely wouldn’t rule on it until 2012 at the earliest, Barr said, effectively leaving S1070 off the books for years.
If the case stays in Bolton’s court after the Ninth Circuit rules on the state’s appeal, Barr views her ruling a sign of how she’ll ultimately rule on the merits of the case. If the next step for the case, and not just the preliminary injunction, is the Ninth Circuit, Barr said he believes Bolton’s ruling is solid enough to withstand any appeal.
“This is a well thought out scholarly opinion. Guessing on what courts are going to do is not a way to make a living. But I would think the Ninth Circuit is going to uphold this,” Barr said.
Nancy Jo Merritt, an immigration attorney at the firm Fennemore Craig, said Bolton’s ruling that the federal government will suffer irreparable harm if S1070 goes into effect is a strong indication of how the case will play out.
“One hates to be overconfident but I think those are pretty storng arguments. I certainly have some cheerful hope that they will be gone forever,” she said of the sections of S1070 that Bolton blocked.
Brewer, who signed S1070 in April and has become the public face of the bill, disagreed. She expressed confidence that S1070 would prevail in the upcoming legal battle over the law.
“This fight is far from over. In fact, it is just the beginning, and at the end of what is certain to be a long legal struggle, Arizona will prevail in its right to protect our citizens,” Brewer said. “I will battle all the way to the Supreme Court, if necessary, for the right to protect the citizens of Arizona.”
Brewer also said she was disappointed by the ruling, but encouraged by the fact that Bolton left some sections intact, such as the “sanctuary city” provision that prohibits cities from restricting the enforcement of immigration law.
The judge did not halt S1070 in its entirety, and other provisions will go into effect on July 29 as scheduled. But the sections that were blocked – those that require police to inquire about immigration status and make it a misdemeanor offense to be in the country illegally – were the heart of S1070, effectively neutering the controversial law.
The U.S. Department of Justice said Bolton made the right decision. “While we understand the frustration of Arizonans with the broken immigration system, a patchwork of state and local policies would seriously disrupt federal immigration enforcement and would ultimately be counterproductive,” said Hannah August, a Justice Department spokeswoman.
Section 2 of S1070 mandates that officers check the immigration status of suspected illegal immigrants, and states that police must check the immigration status of anyone who is arrested before they are released. Bolton wrote that the federal government is likely to succeed in its claim that S1070 is preempted by federal law because the myriad requests U.S. Immigration and Customs Enforcement is likely to get from Arizona law enforcement agencies would divert federal resources away from the agency’s 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.
She also ruled that S1070 will place an unncessary burden on legal immigrants whose detentions will be prolonged while police check their immigration status, especially because the law puts pressure on police officers to “enforce the immigration laws vigorously.”
“Legal residents will certainly be swept up by this requirement,” Bolton wrote.
The wording of Section 2 is problematic, Bolton wrote, because it does not explicitly say that arrestees’ immigration status must be checked only when there is a reasonable suspicion that they are in the country illegally. And she noted that policies such as the Tucson Police Department’s “cite and release” policy, under which more than 36,000 people were cited and released at crime scenes in 2009, technically count as an arrest.
The other major provision that Bolton blocked, which makes it a state crime to be in the country illegally, is preempted because it interferes with the “comprehensive system of registration” the federal government has established for immigrants, the judge said.
The provision of S1070, Section 3, “stands as an obstacle to the uniform federal registration scheme and is therefore an impresmissible attempt to regulate alien registration,” Bolton said.
Though the central provisions of S1070 will not go into effect, Bolton did not halt numerous other sections of the law. She left intact a provision making it illegal for illegal immigrants, or motorists who pick them up, to block traffic while soliciting work. Sections that prohibit government entities in Arizona from adopting “sanctuary city” policies, and allow residents to sue if such policies are implemented, will also go into effect.
Nonetheless, some supporters of S1070 hailed parts of Bolton’s ruling as a victory. Sen. Russell Pearce, who sponsored the bill, noted that Bolton’s ruling still allows police to ask about immigration status, but instead of charging under the state law, police will have to turn suspects over to ICE. He was also happy that Bolton left in the provision that prohibits local governments from limiting or restricting the enforcement of federal immigration laws.
“We will sue them,” the Mesa Republican said, before accusing Chandler, Phoenix and Mesa of being sanctuary cities.
Pearce said he believes the state will win the legal battle if it reaches the U.S. Supreme Court. “We wrote this for this battle,” he said.
Maricopa County Sheriff Joe Arpaio, who has vigorously pursued immigration violations for years, said Bolton’s ruling won’t change his policies on illegal immigration. Arpaio said he’s still going to enforce Arizona’s human smuggling laws and employer sanctions laws as he’s done during the past three years.
The only difference is how suspected illegal immigrants who haven’t broken a state law will be treated. Had the key portions of S1070 stood, those people would have been booked into jail, Arpaio said. Now, they will be turned over to federal authorities.
“This is not going to interfere with how we operate,” Arpaio said.
Attorney General Terry Goddard, the Democratic candidate for governor, slammed Brewer for signing a bill that he said could not be defended in court and has jeopardized the state’s economic well being by sparking numerous boycotts. Goddard opposed the law, but vowed to defend it in court before Brewer removed him from the case.
Goddard, who will face Brewer in the November general election, said the governor’s decision to keep him off the defense team was a “political stunt.” He described the Attorney General’s Office as the most successful constitutional appellate team in Arizona, and said its presence on the defense team could have helped.
But, he said, the ruling at least provided some clarify for Arizona and for police officers across the state as to what their obligations are regarding the enforcement of S1070.
“I don’t like to see us on the losing end of a case, but I do think it’s very helpful for us to have this on books and clear the air,” he said.