How the United States Government Protected Immigrants and United States Citizens Alike in Arizona

Federal District Court Judge Susan Bolton issued a preliminary injunction against most of the provisions of Arizona’s SB1070, because she found the majority of the sections of the law unconstitutional. Rather than striking down the whole law, she examined each provision to see where Arizona state law intruded upon federal power, only enjoining those provisions that usurped federal authority to regulate immigration. Below is a look at the individual provisions she addressed.

The Judge wrote that the State of Arizona’s law requiring police officers to check the immigration status of all people they lawfully stop was unconstitutional. Presently, the law allows that if someone is arrested, that person’s papers can be, but must not always be checked. Arizona’s law required something very different, something much more expansive. It required that everyone who was with a person who was legally stopped was required to have their legal status in the U.S. checked if there was a “reasonable suspicion” that that person might not be lawfully in the US. Meaning, everyone in a stopped car, caught loitering, or in any situation when more than one person is involved in the stop, let alone a single person with an out-of-state license (including one from New Mexico, which issues driver’s licenses to people not federally authorized to be in the U.S.) is to be detained in police custody in Arizona until valid documentation is presented to prove that they are either a U.S. citizen, legal permanent resident, or otherwise allowed to be lawfully in the U.S. (such as professionals workers, visitors, students, or exchange visitors). Judge Bolton concluded that the expansiveness of who must have their status in the US examined leads to “a substantial likelihood that officers will wrongfully arrest legal permanent aliens.” The judge wrote that the necessity to show legal documents would also likely cause permanent residents (and U.S. citizens) to be detained for an indeterminate time while documents are verified, thus creating an impermissible violation of peoples’ liberty under the U.S. Constitution.

This brought another of the law’s requirements under constitutional scrutiny. The Judge concluded under the U.S. Constitution, Arizona did not have the right, as a state, to require that all immigrants carry documents where the Federal government does not require the same. The federal government only requires that legal permanent residents (green card holders) carry their documents. Arizona required all immigrants and non-immigrants, in any and all immigrant statuses to carry their documents, thus further expanding the documentation required beyond federal law.

She also found it an impermissible taking of authority not granted to the State of Arizona by the Constitution to require the U.S. federal authorities to check everyone’s status that they legally stop, instead of allowing federal enforcement resources to be applied where they believe most effective. The federal government has clearly enunciated its own priorities for enforcing immigration laws: 1) suspected terrorists and spies, 2) violent criminals, felons, and repeat offenders, 3) members of criminal gangs, 4) those with outstanding criminal warrants for their arrest 5) others who pose a serious threat to public safety, (prioritized as (a) aggravated felons, (b) felons, (c) misdemeanors violators, 6) illegal immigrants captured while sneaking across the border, and 7) those who obtain admission into the U.S. by status, visa, identification or immigration fraud. By default, the last priority is those who simply reside in the U.S. unlawfully. To further reinforce its priorities, the Obama Administration’s Department of Homeland Security has begun its Secure Communities initiative where everyone booked and/or arrested, no matter how innocuous the crime, (i.e. driving without a license,) will be fingerprinted to fit within the U.S. government’s enforcement priorities.

Another part of the law the Judge deemed unconstitutional was Arizona’s decision as a state that it can make it illegal for unauthorized workers to search for work as a matter of state law. The federal law makes it unlawful for employers to hire people without documents. It also makes it a violation for anyone to be in the U.S. without papers, though this is a civil and not criminal violation. Arizona made it a crime for an unauthorized immigrant to look for work – something that is not under federal law (even though that person is subject to deportation). Arizona made it a crime to be in the U.S. without papers whereas federal law does not (federal law makes it a crime to cross a border without authorization but the act of being in the U.S. without legal papers, for instance overstaying a visa, is not a criminal but a civil offense.

Judge Hillar also wrote that Arizona cannot give the police the power to make warrant-less arrests of people that are suspected to be removable from the U.S. because they believe the crime is a ground for deportation. Deportation is a matter determined in a court, by an immigration judge, or at least by an immigration enforcement official, not by the police at a traffic stop. She explained that it is too difficult, and gives a police officer too much arbitrary power, to determine what type of crimes trigger deportation grounds. In reality, Arizona was giving police the power to arrest even legal permanent residents, (green card holders), who may have appeared in court and had their criminal case disposed of long ago, but whom a police officer believes to be deportable due to that offense.

The Judge found that allowing states to create their own patchwork of immigration laws nationwide would burden the U.S. Department of Homeland Security and Department of Justice, and could disrupt U.S. relationships with foreign countries. She found that even if state law shares federal goals, it cannot substitute its own methods for achieving those goals.

Judge Hillar did agree with Arizona on two minor parts of the law. First, that Arizona has a right to regulate such matters as how traffic affects public safety under state law, so that it can make it illegal for cars and trucks to slow down or stop on a public road to pick up day workers. However, the Judge found that Arizona cannot make it a crime for immigrants to request work in public places nor make it a crime to be “trespassing” in the state without legal papers.

The Judge also found that cities do not have the right to set for themselves the designation of a “sanctuary city” whereby it attempts to tell federal authorities whether it can enforce federal law in those cities. This determination is consistent with the Constitutional principle the Judge adhered to: that the federal government, and not other levels of government, control the country’s immigration laws. Most people who do not practice or study the legal system don’t realize that judges are not to choose a certain outcome they want to see – in this case either helping or restricting unauthorized immigrants – but must analytically follow established legal precedent to determine who has the legal right to do what under the Constitution or under a particular statute. This is why the Judge was very consistent in writing that cities cannot choose to just ignore federal law by declaring themselves sanctuaries.

Lessons from the Court’s Decision:

1) The Constitution of the United States is the final arbiter of what laws are to be in the United States – not public opinion and at least in an immediate sense, not even elections. When it comes to the Constitution, elections only affect how the Constitution is interpreted in a long-term sense according to the President’s appointment and senate confirmation of federal court justices. Even so, justices do feel compelled to follow the dictates of the Constitution, statutes and case laws. The Constitution clearly states, and the U.S. Congress has always supported; that national sovereignty, meaning borders, foreign policy and immigration are federal matters.

2) Just as those on the right are quick to tell unlawfully present immigrants that they are violating the rule of law, so is the Federal Judge in telling the Arizona legislature and Governor that they are violating the rule of law. One’s view of morality and one’s view of law often go hand in hand, but not always.

3) Other state legislatures are now less likely to pass similar laws, especially since everyone figures that Arizona will lose its appeal at the Circuit Court level, and that advocates of the law only have a chance of having the Federal Judge’s decision overturned by the Supreme Court.

Not just legislatures, but individuals such as the state workers at the Utah Department of Workforce Services, who published the names, social security numbers, dates of birth of the people and children, and the addresses and workplaces of those whom the employees suspected were in the country without authorization, are being warned against demonizing unlawfully present immigrants. Just as disturbing, 10 Utah government workers apparently knew what the two employees were doing and did nothing to stop them from failing to keep government collected information private.

Lastly, the State of Arizona’s law expanding immigration restrictions can be seen as part of the current larger debate about federal power versus states rights under the Constitution

Federal power seems to be continuing to hold sway in the 21st Century, just as it did in the 20th Century. For example, the last Supreme Court recently ruled that the Second Amendment’s right to bear arms trumps cities like Chicago or Washington D.C.’s ability to limit citizens’ rights to possess guns.
Most experts believe that the massive national health care law, which passed this year, will be found to be Constitutional within the authority granted the federal government under the Commerce Clause and the federal government’s taxation right for the general welfare.

The striking down of Arizona’s law as infringing upon federal authority concerning the nation’s sovereignty, foreign policy, and immigration authority is also very likely to be upheld.

Ironically, for those on right, the challenge to federal authority perhaps most likely to succeed has to do with Massachusetts’ right to have its definition of marriage respected by federal authorizes, as the regulation of marriage, divorce, adoption, and other probate matters has always been a matter of state, not federal, law. Further, the recent federal Judge’s decision holding California’s Proposition 8 referendum vote as unconstitutional, demonstrates, as is the case above and certainly immigration, that voter preferences, likes and dislikes, matter less than Constitutional principles. This was true when slaves were freed from being counted as 2/3 of a human being, when women were allowed to vote just like men, and when African Americans were allowed college admission like Caucasions. History has judged the U.S. Constitution to be a more valuable leading predictor of right and wrong than public opinion polls.

by Randy Feldman, Esq.
508-792-1202