The Obama administration officially dropped its challenge Monday to the controversial “papers, please” provision of SB1070.
U.S. District Court Judge Susan Bolton signed the order dismissing the government’s contention that the section is unconstitutional on its face because it infringes on the exclusive power of the federal government. The administration also had alleged there is no legal way to enforce the provision without racial discrimination.
In exchange, state officials agreed to stop fighting to preserve another section of the 2010 law that makes it a crime for anyone to knowingly transport or harbor someone not in this country legally. That section also made it illegal to “encourage or induce” someone to come to or reside in Arizona if they have no legal right to be in the country.
Monday’s order leaves only one small provision of the original law at issue in this case: a minor change to the state’s smuggling law. All the other provisions already have either been struck down or have taken effect.
The section at issue requires police who have stopped someone for any reason to check that person’s immigration status if there is “reasonable suspicion” the person is in the country illegally.
Department of Justice spokesman Peter Carr said it made sense for the federal government to drop its challenge.
He noted the U.S. Supreme Court in 2012 refused to enjoin that section from being enforced. The justices said that, on its face, there is nothing inherently unconstitutional or discriminatory about it.
Carr noted, though, that they warned their views might be different if someone presents evidence that it is being unfairly applied or that individuals are being detained for any long period of time – beyond what is necessary for the original traffic stop – while their immigration status is being ascertained. And he said Monday’s agreement frees the Obama administration to file a new lawsuit if that proves to be the case.
That may not be necessary. Several immigrant rights group still have their own challenge to the same language.
Cecillia Wang, an attorney for the American Civil Liberties Union, said she believes challengers can show that many police agencies have a policy or practice of detaining people while they are checking whether they are legally present in this country.
Wang said she reads the Supreme Court ruling to say that any detention beyond what is necessary is illegal. And she wants Bolton to conclude that such practices must be blocked.
Bolton has not issued a ruling on that claim.
Andrew Wilder, spokesman for Gov. Jan Brewer who signed the original law, said the state lost nothing in refusing to defend the harboring law, citing an existing preliminary injunction against its enforcement.
But no court has ever issued a definitive ruling on whether a state can enact such a law. And Monday’s deal means there will not be such a ruling in this case.