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Understanding the Injunction Against SB 1070

Posted July 28, 2010 by Patrick Young, Esq.
Categories: Hate Watch

I will post a number of pieces looking at Judge Bolton’s ruling halting the implementation of most of Arizona’s anti-immigrant law.

In this post, I wanted to look closely at just a few elements of the Judge’s ruling so you can understand the legal reasoning behind the headlines.

Before we begin, I just wanted to note that in order to get an injunction, the opponents of the law had to show two things. First, that it was likely they would prevail, and second, that irreparable harm would result if an injunction was not issued.

Background

The Judge accepted the Federal government’s contention that the United States has immigration laws and policies and rejected the contention that the Federal government had abdicated its reponsibilities for controlling immigration and thereby turned that power over to the states. The Judge writes that:

Congress has created and refined a complex and detailed statutory framework regulating immigration. The federal immigration scheme is largely enacted through the Immigration and Nationality Act which empowers various federal agencies (including the Department of Justice (“DOJ”), Department of Homeland Security (“DHS”), and Department of State (“DOS”)) to administer and enforce the immigration laws. Among its many provisions, the INA sets forth the conditions under which a foreign national may be admitted to and remain in the United States. The INA also contains an alien registration system intended to monitor the entry and movement of aliens in the United States. Various actions may subject an alien to being placed in removal proceedings, such as entering the United States without inspection, presenting fraudulent documents at a port of entry, violating the conditions of admission, or engaging in certain other proscribed conduct. Violations of immigration laws may also subject an alien to civil and criminal sanctions. Unlawful presence in the United States is not a federal crime, although it may make the alien removable.

Preemption

The Federal government asserted that the statutory provisions contained in S.B. 1070 are preempted by federal law. The Judge writes that:

The Supremacy Clause of the United States Constitution makes federal law “the supreme law of the land.” U.S. Const. art. VI, cl. 2. The Supreme Court has consistently ruled that the federal government has broad and exclusive authority to regulate immigration, supported by both enumerated and implied constitutional powers. While holding that the “[p]ower to regulate immigration is unquestionably exclusively a federal power,” the Supreme Court concluded that not every state enactment “which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional power, whether latent or exercised.” De Canas v. Bica, 424 U.S. 351, 354-355 (1976).
Federal preemption can be either express or implied. Chicanos Por La Causa v. Napolitano (Chicanos Por La Causa I), 544 F.3d 976, 982 (9th Cir. 2008), cert. granted, 78
U.S.L.W. 3065, 78 U.S.L.W. 3754, 78 U.S.L.W. 3762 (U.S. June 28, 2010) (No. 09-115).

There are two types of implied preemption: field preemption and conflict preemption. Id. Field preemption occurs “where ‘the depth and breadth of a congressional scheme . . .
occupies the legislative field.’” Id. (quoting Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001)). Conflict preemption describes a situation in which “compliance with both federal and state regulations is a physical impossibility or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id.

1. Preemption of Overall Statutory Scheme

S.B. 1070 contains several provisions adding to and amending Arizona law. While the United States has requested that the Court enjoin S.B. 1070 in its entirety, it specifically challenges only select provisions of S.B. 1070. The United States also argues that the overall statutory scheme of S.B. 1070 is preempted because it attempts to set immigration policy at the state level and interferes and conflicts with federal immigration law, foreign relations, and foreign policy. (Id. at 12-25.) Section 1 of S.B. 1070 declares a unified, state-wide public policy, providing:

The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.

While Section 1 of S.B. 1070 provides a statement of the Act’s intent and purpose, it does not create a single and unified statutory scheme incapable of careful provision by
provision analysis. The Court cannot enjoin a purpose; the Arizona Legislature is free to express its viewpoint and intention as it wishes, and Section 1 has no operative function.
However, this is not to say that Section 1 is irrelevant. The expression of the Legislature’s intent provides context and backdrop for the functional enactments of S.B. 1070, and the
Court considers it in this capacity as it analyzes the other provisions of the law.

S.B. 1070 will not be enjoined in its entirety. The Court will not ignore the obligation to preserve the constitutional provisions of a state legislative enactment or S.B. 1070’s
severability clause. The Court thus evaluates the constitutionality of the individual provisions of S.B. 1070 challenged by the United States.

What the Judge is saying is that while the immigration power is a Federal function, and the overall scheme of SB 1070 appears to contradict Federal polichy, individual sections of the law may be constitutional.

The Judge then turns to the individual sections to determine if they are preempted by Federal law.

First up is the notorious “show me your papers” provision which requires police to ask for immigration documentation in a wide variety of circumstances:

The United States argues that this section is preempted because it will result in the harassment of lawfully present aliens and will burden federal resources and impede federal enforcement and policy priorities.

a. Mandatory Immigration Status Determination Upon Arrest
The Court first addresses the second sentence of Section 2(B): “Any person who is arrested shall have the person’s immigration status determined before the person is released.”
Arizona advances that the proper interpretation of this sentence is “that only where a reasonable suspicion exists that a person arrested is an alien and is unlawfully present in the
United States must the person’s immigration status be determined before the person is released.” (Defs.’ Resp. to Pl.’s Mot. (“Defs.’ Resp.”) at 10.)5 Arizona goes on to state, “[T]he
Arizona Legislature could not have intended to compel Arizona’s law enforcement officers to determine and verify the immigration status of every single person arrested – even for
United States citizens and when there is absolutely no reason to believe the person is unlawfully present in the country.”

The Court cannot interpret this provision as Arizona suggests. Before the passage of H.B. 2162, the first sentence of Section 2(B) of the original S.B. 1070 began, “For any lawful
contact” rather than “For any lawful stop, detention or arrest.” (Compare original S.B. 1070 § 2(B) with H.B. 2162 § 3(B).) The second sentence was identical in the original version and as modified by H.B. 2162. It is not a logical interpretation of the Arizona Legislature’s intent to state that it originally intended the first two sentences of Section 2(B) to be read as
dependent on one another. As initially written, the first sentence of Section 2(B) did not contain the word “arrest,” such that the second sentence could be read as modifying or
explicating the first sentence. In S.B. 1070 as originally enacted, the first two sentences of Section 2(B) are clearly independent of one another. Therefore, it does not follow logically
that by changing “any lawful contact” to “any lawful stop, detention or arrest” in the first sentence, the Arizona Legislature intended to alter the meaning of the second sentence in any
way. If that had been the Legislature’s intent, it could easily have modified the second sentence accordingly. As a result of this conclusion, the Court reads the second sentence of Section 2(B) independently from the first sentence. The Court also concludes that the list of forms of identification that could provide a presumption that a person is not an unlawfully present alien applies only to the first sentence of Section 2(B) because the second sentence makes no mention of unlawful presence: the second sentence states plainly that “[a]ny person who is arrested” must have his or her immigration status determined before release. A presumption against unlawful presence would not dispose of the requirement that immigration status be checked because a legal permanent resident might have a valid Arizona driver’s license, but an inquiry would still need to be made to satisfy the requirement that the person’s “immigration status” be determined prior to release.

The United States asserts that mandatory determination of immigration status for all arrestees “conflicts with federal law because it necessarily imposes substantial burdens on
lawful immigrants in a way that frustrates the concern of Congress for nationally-uniform rules governing the treatment of aliens throughout the country – rules designed to ensure ‘our
traditional policy of not treating aliens as a thing apart.’” (Pl.’s Mot. at 26 (quoting Hines v. Davidowitz, 312 U.S. 52, 73 (1941)).)

The Court is also cognizant of the potentially serious Fourth Amendment problems with the inevitable increase in length of detention while immigration status is determined, as raised by the plaintiffs in Friendly House, et al. v. Whiting, et al., No. CV 10-1061-PHX-SRB.

Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully-present aliens because
their liberty will be restricted while their status is checked. Given the large number of people who are technically “arrested” but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification. Under Section 2(B) of S.B. 1070, all
arrestees will be required to prove their immigration status to the satisfaction of state authorities, thus increasing the intrusion of police presence into the lives of legally-present
aliens (and even United States citizens), who will necessarily be swept up by this requirement.

Essentially, the Judge is rejecting the notion put forward by the supporters of SB 1070 that the only people who need fear the law are serious criminals who are also undocumented immigrants. The Judge says that many people legally in the United States will be forced to provide immigration documents and may be detained for significant periods of time while police await word from ICE on legal verification.

This is not simply a reinforcement of Federal law, it is a state trying to make its own laws on immigration.

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