Federal Judge Blocks Key Provisions of Arizona Law, Setting Stage for Long Legal Battle
By Muzaffar Chishti and Claire Bergeron
Migration Policy Institute
Outside the federal courthouse in Phoenix, people protest Arizona law SB 1070.
August 16, 2010
The battle over Arizona's contentious immigration law is far from over. Arizona Governor Jan Brewer has appealed a federal district court judge's decision to temporarily block several of the law's key provisions. The US Court of Appeals for the Ninth Circuit has denied Brewer’s request for an expedited hearing, meaning the injunction will remain in effect for at least the next several months.
Meanwhile, Brewer has said she may ask the Arizona state legislature to "tweak" SB 1070 to respond to specific concerns of the federal court and strengthen the law's chances of being implemented.
On July 28, one day before SB 1070 was scheduled to take effect, the federal judge who ruled, Susan Bolton, stopped the state from going forward with key provisions, including the one requiring police officers to inquire into the immigration status of anyone stopped for a violation of a state or local law if the officer has a "reasonable suspicion" that the individual is an unauthorized immigrant.
Though Bolton ruled on the US government's lawsuit against the state of Arizona, a range of civil liberties groups and individual Arizona police officers have filed similar suits. Bolton has not issued a ruling in any of the other lawsuits.
Following the Ninth Circuit Court's decision, the case will move back to the district court for a full hearing on the law's merits, a decision which, regardless of its outcome, is also likely to be appealed, and may ultimately end up before the US Supreme Court.
Since its passage, SB 1070 has become a symbol of the larger debate about immigration reform in the United States. The law has also revealed sharp divisions along ethnic lines. A Wall Street Journal and NBC poll in May 2010 found that while 64 percent of Americans supported Arizona's law, 70 percent of Latinos opposed it. A July CNN poll found a similar split — 71 percent of Hispanics opposed the law, while 61 percent of white respondents supported it.
Breakdown of the Ruling
Bolton did not enjoin all of SB 1070, which the federal government had requested. Instead, she found that four key provisions warranted a preliminary injunction for two reasons: the government's arguments that federal law preempted SB 1070 were likely to prevail at the full hearing on the merits, and the government was "likely to suffer irreparable harm" if they were not enjoined.
The four sections Bolton stopped are
Specifically, Bolton found that the provisions related to law enforcement's mandatory inquiries into immigration status and the warrantless arrests of removable immigrants would impose a "significant burden" on legal residents, many of whom could be wrongfully arrested or detained for extended periods if they could not produce proof of their immigration status.
- requiring local law enforcement officers to ask about the immigration status of an individual stopped by the police if an officer has a "reasonable suspicion" that the person is an unauthorized immigrant; requiring officers to verify the immigration status of anyone arrested before releasing that person from detention
- making it a state crime for immigrants to fail to carry proof of their immigration status
- making it a state crime for unauthorized immigrants to solicit or perform work
- allowing police officers to arrest without a warrant anyone suspected of having committed a public offense that renders him or her removable from the United States.
The judge also noted that the task of determining whether an immigrant has committed a crime rendering him or her removable is a task of "considerable complexity," and state and local law enforcement officers do not receive adequate training to be able to make such a determination.
She found that the portion of SB 1070 making it a state crime for unauthorized immigrants to solicit or perform work contradicted the federal government's carefully balanced system of penalties for unauthorized employment.
In agreeing with the federal government that federal law likely preempted four sections of SB 1070, Bolton found that implementing the four provisions would require the federal government to shift resources away from law enforcement priorities.
Finally, Bolton also recognized that allowing SB 1070 to take effect would undermine the ability of the United States to "speak with one voice" on immigration matters, with implications for a uniform national foreign policy.
Bolton declined to block the various other provisions of SB 1070, finding that they were not likely to be deemed preempted during a full hearing on the law. These provisions include
Reaction to the Ruling
- prohibiting Arizona officials, agencies, and subdivisions from limiting the enforcement of federal immigration law
- making it a crime to hire day laborers if the practice impedes normal traffic flows
- making it illegal to transport, conceal, or harbor unauthorized immigrants
- amending the definitions of crimes of human smuggling.
Some state and national politicians and political hopefuls have sought to capitalize on the anger SB 1070 has aroused, and many have invoked the law during mid-term election campaigns.
Arizona's Republican senators, John McCain and Jon Kyl, have said they were "deeply disappointed" in Bolton's ruling, while Democratic House members Gabrielle Giffords and Ann Kirkpatrick have emphasized that the lawsuit was a "distraction" from the issue of securing the border.
Outside of Arizona, former Republican presidential candidate Mike Huckabee released a letter in which he characterized the injunction as "another example of an activist judge putting their ideas ahead of the law."
Congressman Luis Gutierrez (D-IL), who has pushed for immigration reform in the House, issued a press release hailing the injunction as a victory and calling SB 1070 "un-American and unconstitutional."
Senator Lindsey Graham (R-SC), the only Republican in the Senate who pledged to work toward immigration reform in the 111th Congress, said the decision represented a "time out" in the immigration debate, and that he would like to use the time to help craft a federal legislative solution on immigration.
President Barack Obama has not commented on Bolton's decision.
Ruling in Context
Many immigration experts and constitutional scholars have argued the lawsuit against Arizona was necessary to reassert the federal government's authority to set a national immigration policy.
Since the 1800s, courts have held that regulating immigration policy is primarily a federal responsibility, though the Supreme Court has recognized that not every state law dealing with immigrants is "a regulation of immigration, and thus per se preempted."
The argument over what triggers federal preemption in the immigration context will reemerge this fall when the Supreme Court considers the legality of another controversial Arizona law, the 2007 Legal Arizona Workers Act. That law held that the state could suspend or revoke the business licenses of Arizona businesses that knowingly employed unauthorized immigrants.
Like the plaintiffs in the SB 1070 case, those challenging the Legal Arizona Workers Act have asserted that federal law preempts the Arizona law. Briefs from both sides are due to the Court by October.
Some analysts have noted that Bolton's decision may prevent other states from enacting laws similar to Arizona's, at least until after the legal challenge facing Arizona is fully resolved.
Obama administration officials have echoed this assessment, calling the decision a powerful "warning sign" to states considering similar legislation.
But while the injunction may well have dampened some enthusiasm for "copy cat" measures among state legislators, the politically charged nature of the immigration debate, combined with the midterm election season, have not extinguished all efforts to introduce such legislation.
Already, lawmakers in Utah, Virginia, and Colorado have announced they will move forward with plans to introduce tough "Arizona-style" bills, regardless of Bolton's ruling.
Senator Proposes Review of Birthright Citizenship
Senator Lindsey Graham (R-SC), an influential member of the Senate Judiciary Committee, said in late July he may introduce a bill to amend the 14th Amendment to the Constitution so that it no longer grants birthright citizenship to the children of unauthorized immigrants.
Meant to ensure US citizenship for former slaves and their descendants, the 14th Amendment, ratified in 1868, states that anyone born within the United States is a US citizen (with very minor exceptions).
Some argue that because of the 14th Amendment, unauthorized immigrants deliberately choose to have children in the United States to improve their chances of gaining legal status even though US-citizen children must be 21 years old to sponsor their parents for immigration benefits. According to Pew Hispanic Center estimates based on US Census Bureau data, about 340,000 children were born to unauthorized immigrants in 2008 of the 4.3 million births that year.
Given strong opposition to Graham's proposal among many lawmakers, civil rights groups, and others, the issue appears unlikely to make it to the Senate floor, at least in this congressional session.
Policy Beat in Brief
$600 Million for Enhanced Border Protection. President Barack Obama signed into law a $600 million border security bill after both houses of Congress passed the bill during rare congressional recess sessions. The new measure authorizes the hiring of 1,000 additional border patrol officers and additional Immigration and Customs Enforcement (ICE) officers. It also allows the Department of Homeland Security (DHS) to purchase two unmanned aerial drones to monitor the border and funds additional border technology to counter drug and immigrant smuggling. Due to a last-minute deal cut in the Senate, dramatically increased H-1B (temporary skilled worker) and L-1 (intracompany transfer) visa application fees for a handful of technology firms will pay for these initiatives.
Increase in Deportations. The number of immigrants ICE deported from the United States increased 10 percent in the first nine months of fiscal year 2010 over the same period in 2008, according to the Transactional Access Records Clearinghouse (TRAC). TRAC also found a significant increase in removals of immigrants who had committed crimes. Since assuming office in 2009, the Obama administration has maintained that it will prioritize the removal of immigrants with criminal convictions.
U Visa Cap Reached. US Citizenship and Immigration Services (USCIS) approved 10,000 U nonimmigrant visas for immigrant crime victims during FY 2010, meeting the annual cap for such visas for the first time since Congress created the U-visa category in 2000. The U visa allows victims of designated crimes (including domestic violence, rape, and aggravated assault) to apply for four years of temporary work authorization and protection against deportation. Recipients must prove they are of good moral character and have cooperated with law enforcement agents in the investigation and/or prosecution of the crime.
DHS Anti-Trafficking Campaign. DHS is aiming to counter human trafficking and provide resources to trafficking victims with its new "Blue Campaign" that includes multilingual public service announcements, a website, pamphlets for emergency responders and health-care professionals, and additional training initiatives for law enforcement personnel. As part of the campaign, DHS has emphasized its goal of prosecuting traffickers, rather than deporting trafficking victims, many of whom may be eligible for immigration relief.
Drop in Remittances to Mexico. The amount of money Mexican workers abroad send home fell by roughly 4.1 percent during the first half of 2010 compared with the same period in 2009, according to Mexico's central bank. Mexico received roughly $10.63 billion in the first six months of 2010, down from the $11.1 billion during the first few months of 2009. About 11.4 million Mexican foreign born resided in the United States in 2008, approximately 10 percent of the total Mexican population.
New Online Detainee Locator. ICE has launched a new online system to better assist family members and attorneys in locating where immigrants detained by ICE are being held. ICE set up the system in response to concerns from immigrant advocates over frequent detainee transfers and a lack of information about which detainees were being held in certain custody centers. ICE Assistant Secretary John Morton has characterized the initiative as part of the agency's plan to reform the immigrant detention system and improve detention conditions.
First WHTI-Compliant Tribal ID Card. DHS issued the first set of tribal identification cards compliant with the Western Hemisphere Travel Initiative (WHTI) to members of the Pascua Yaqui Tribe in Arizona in July 2010. Tribe members can use the ID cards as proof of identity and US citizenship, and the cards may also be used in place of US passports when tribe members cross the US-Mexico border. Under the terms of WHTI, all individuals entering the United States via land or sea ports of entry after June 2009 must present documentation showing their identity and citizenship status.
Work Authorization for Dependents of Foreign Diplomats. All "dependent" relatives of foreign diplomats in the United States can apply for work authorization under a new final rule DHS has issued. Previously, only some family members (such as spouses, unmarried children under 25, and disabled adult children) were eligible to apply for work authorization in the United States. The change is aimed at enhancing bilateral diplomatic agreements with foreign countries, and making it easier for US diplomats and their family members to receive work authorization abroad.
State and Local PB in Brief
Rental Ordinance in Fremont, Nebraska. To control legal costs while a judge considers the measure, Fremont, Nebraska's city council has voted to suspend a controversial ordinance aimed at preventing landlords from renting housing to unauthorized immigrants. The ordinance, which voters approved in a ballot initiative in June, would require all potential tenants in Fremont to obtain a rental license from the city. City officials would then attempt to verify the immigration status of license applicants with the federal government, denying rental licenses to those who were not legal residents.
Visit the MPI Data Hub for the latest stats on immigrants in Nebraska and for the State Responses to Immigration data tool.
E-Verify Use in Arizona. Just one-third of employers in Arizona are signed up to use the federal E-Verify system, according to USCIS data obtained by The Arizona Republic. Since January 1, 2008, Arizona's Legal Arizona Workers Act has required all employers in the state to use E-Verify to confirm their new hires are authorized to work. Employers that do not comply can have their business license suspended or revoked if they are found to have knowingly hired unauthorized immigrants. The Supreme Court will hear arguments challenging the constitutionality of the Arizona law during its upcoming term.
Visit the MPI Data Hub for the latest stats on immigrants in Arizona and for the State Responses to Immigration data tool.
Leaked Immigrants' Information in Utah. Utah's Department of Workforce Services (DWS) has fired two state employees suspected of leaking confidential information about immigrant applicants for state services to a variety of news outlets. In July, several Utah media agencies received copies of a list of 1,300 names of individuals purported to be unauthorized immigrants. The list contained the individuals' social security numbers, birth dates, addresses, telephone numbers, and the names of their children. The list sparked fear and panic within the state's immigrant communities. Governor Gary Herbert and several state legislators condemned the release of the information as a violation of state confidentiality laws.
- Read Governor Herbert's press release discussing the leaked information and the termination of two DWS employees.
Visit the MPI Data Hub for the latest stats on immigrants in Utah and for the State Responses to Immigration data tool.