Constitutional experts said the July 28 decision by U.S. District Judge Susan Bolton to stop the most significant elements of the law from taking effect was a clear indication of how she will rule on the federal government’s case against the state.
In fact, attorneys defending the Arizona law have already asked the 9th U.S. Circuit Court of Appeals to lift the injunction, even though Bolton has yet to issue a final ruling in United States of America v. Arizona.
Constitutional experts and immigration attorneys said it’s impossible to predict how the 9th Circuit will react, especially because no one knows which three of the appellate court’s 29 judges will hear the case.
But Bolton’s 36-page order bolstered her reputation as a judge who puts a great deal of thought into her decisions, attorneys and legal scholars said, and the detailed analysis she gave for why she blocked portions of S1070 was an ominous sign for the law’s supporters.
“What that tells you is if you and I were to go to Las Vegas on this thing, we’d bet on the (federal) government side at this point, because they’re going to be the appellee,” said attorney Tim Berg, of the law firm Fennemore Craig.
Bolton wrote her opinion with the knowledge that it would be challenged and examined by higher courts, said University of Arizona law professor Jack Chin. He said the injunction order will likely stand because it relies on what he called a mainstream legal view that immigration law is a federal prerogative, and anything that interferes with that undermines federal preemption.
Berg said appellate courts stand with the original ruling in about two-thirds of all cases. Unless the 9th Circuit finds some serious flaw in her reasoning, he said, it is unlikely to overrule her injunction.
Given the 9th Circuit’s reputation as a liberal appellate court, many supporters of S1070 are already looking ahead to the U.S. Supreme Court. Before Bolton filed her appeal with the 9th Circuit, Gov. Jan Brewer said she’s ready to take the case all the way to the Supreme Court if necessary. And Pearce, who wrote S1070, said he expects the highest court in the land to rule 5-4 or 6-3 in Arizona’s favor.
“We wrote this for this battle,” Pearce said.
But immigration hawks like Pearce may be in for a surprise if United States of America v. Arizona reaches the Supreme Court, according to attorney David Selden.
Historically, conservative justices, with their stricter interpretation of the Constitution, have viewed immigration policy as the exclusive purview of the federal government. That means both ideological factions on the court may be hostile to Arizona’s defense of S1070.
“I think that our argument would appeal, frankly, to both factions on the court in the sense that the more conservative judges would want to follow the Constitution and follow the statute,” said Selden, who represented groups opposed to Arizona’s employer sanctions law.
Chin said numerous cases back up the notion that judicial conservatives are wary of letting states intrude into federal immigration law. The high court ruled in favor of the federal government when similar issues were raised in 1941 and 1956.
Bolton cited the 1941 case numerous times in her injunction order. In that case, Hines v. Davidowitz, the court struck down an immigrant registration system established by Pennsylvania.
Chin said a 1999 case, Reno v. American-Arab Anti-Discrimination Committee, further strengthened federal authority over immigration issues. Justice Antonin Scalia, an icon to conservative judiciary watchers, wrote in the majority opinion that, “Congress has established an integrated scheme for deportation proceedings, channeling judicial review to the final order, and deferring issues outside the agency’s authority until that point.”
“Challengers of SB 1070 could build their arguments almost entirely on the opinions of Justice Scalia,” Chin said. “Most of (the people who want greater state role in immigration issues) are not lawyers and they’re relying on Kris Kobach, and he has this theory that he’s advancing. But it’s not a theory that is accepted by courts. It’s the theory of legislators who listened to his advice.”
Kobach is a Kansas-based lawyer who helped write S1070.
Legal experts said that when Bolton decides the case on its merits – the state is asking that the injunction be lifted while the case proceeds through the district court – her ruling would likely use similar arguments as the injunction.
But the 9th Circuit could essentially decide the case before it gets that far, said attorney Daniel Barr. Barr, an attorney with the firm Perkins Coie Brown and Bain, said he expects the 9th Circuit to uphold Bolton’s decision.
“She’s ruled. This is the ruling,” he said.
Selden said both sides in the lawsuit could ask the 9th Circuit to rule on the constitutionality of the law, effectively ending Bolton’s involvement in the case, though there are still six other lawsuits against S1070 pending in her court.
“Right now, the law of the land is that Senate Bill 1070 is unconstitutional,” Selden said. “I think the parties will probably say, ‘Let’s move on to the 9th Circuit.”
While Arizona and the U.S. Department of Justice wait for their case to work its way through the federal court system, the Supreme Court’s decision in another pending case could provide some insight into how it would rule on S1070. The Supreme Court has agreed to hear a lawsuit against the Legal Arizona Workers Act, which penalizes businesses that employ illegal immigrants.
The 9th Circuit upheld the law, which imposes employer sanctions, but if the Supreme Court overturns it on the grounds that the federal government has sole authority to enforce immigration law, as the White House is arguing, it would likely spell doom for S1070, Barr said.
“If the U.S. Supreme Court in the employer sanctions case rules that the law is preempted … then it’s really game over in this case,” Barr said.
But a Supreme Court ruling in favor of employer sanctions won’t necessarily resurrect S1070, Selden said. Congress already has stated that states have a right to regulate business licenses in regard to the employment of illegal immigrants, which is the narrow portion of law covered by employer sanctions.
However, S1070 deals with much broader legal issues and could still be overturned if the Supreme Court upholds employer sanctions, Selden said.
“There is a way in which the Supreme Court could uphold the employer sanctions law … without touching an issue involving 1070,” Selden said.
Brewer, who signed S1070 in April and has become the public face of the law, said she was disappointed by Bolton’s decision, but encouraged by the fact that the judge 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 went into effect 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.
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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 requires law enforcement officers to 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 U.S. Immigration and Customs Enforcement is likely to get myriad requests from Arizona law enforcement agencies, which 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 were blocked, Bolton left intact a provision making it a crime 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, also took effect.
Some supporters of S1070 hailed parts of Bolton’s order as a victory. Pearce said the judge’s decision still allows police to ask about immigration status, but instead of charging under the state law, police will have to turn suspects over to federal authorities.
Opponents of the law said the injunction sends a strong message to other states that are hoping to replicate the law.
“Surely it’s going to make states pause and consider how they’re drafting legislation and how it fits in a constitutional framework,” Dennis Burke, the U.S. attorney for Arizona, told The Associated Press. “The proponents of this went into court saying there was no question that this was constitutional, and now you have a federal judge who’s said, ‘Hold on, there’s major issues with this bill.'”
Burke added: “So this idea that this is going to be a blueprint for other states is seriously in doubt. The blueprint is constitutionally flawed.”
But if numerous other states pass S1070-type laws – more than a dozen have proposed such bills already – it could provide an impetus for the Supreme Court to overrule them all. Toni Massaro, a law professor at the Univeristy of Arizona, said multiple state laws would provide a stronger argument that federal government must preempt them all to ensure that immigration policy is uniform across the country.
“It’s ironic. The more states jump on board, the weaker Arizona’s (legal) case becomes,” Massaro said.
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