Analysis of Federal Court Decision Ruling on Arizona AZ SB1070 Law: Likely Response Summary

On July 28th, 2010, Judge Susan Bolton has ruled that certain parts of SB1070 (as amended by HB2162, collectively known as "SB1070") are temporarily enjoined, just before the law was supposed to take effect. However, controversy about that decision has continued to grow.

Just what exactly was enjoined, and what reasons were used to justify the action? And are those reasons... reasonable? And what other issues surrounds the ruling?

NOTE: These views are as neutral as possible, and tries to only analyze the issues and their relative merits based on prior cases.

Instead of rehashing the list, please take a look at this summary prepared by FoxNews

http://www.foxnews.com/politics/2010/07/28/quick-analysis-arizona-immigration-law-ruling/

Out of 12 provisions in SB1070, 4 were enjoined, and 8 were NOT enjoined. The ones that got enjoined are the relatively controversial ones. They are

• require verification of immigration status
• failure to carry immigration papers
• illegal for illegal alien to solicit work
• warrantless arrest for potentially removable alien

We will analyze what each of the provisions say, why the judge enjoined it, and what sort of position may AZ take at appeal

if you wish to read the full ruling in PDF file, it is available. 

Why enjoined?

Pre-empted by Federal law because it creates an additional burden on the Federal government by increasing the number of immigration-verification requests to the Federal Government.

Analysis

This is directly against 8 USC 1373 (c), from which I quote:

"(c) Obligation to respond to inquiries -- The immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information".

And furthermore, it is also against 8 USC 1373 (a)

"(a) Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any any government entity or official from sending to or receiving from the INS information regarding the citizen ship or immigration status, lawful or unlawful, of any individual".

Or translated into regular language: "No government official or body can prevent or restrict any government official or body from verifying somebody's immigration status from the INS, and INS *must* reply. Reading of the law doesn't indicate any sort of "exemption".

Judge Bolton referred to 8 USC 1373 in her ruling, but basically claimed that AZ will overload the system which will cause "irreparable harm" to DHS responsibilities, so it must be enjoined.

Further reading of Judge Bolton's order shows that she's seem to want a clearer language of the part requiring verification of all arrestees.

AZ Potential Response

Interestingly, Judge Bolton's ruling is directly against the law she cited. AZ defense will likely center on this law. AZ legislature can also revise the law again to provide a clearer language.

Hines vs. Davidowitz (312 US 52, 1941) is a case where Pennsylvania created its own "alien registration system", requiring paying a small fee, and carry a state ID card at all times. A year later, Congress passed the nationwide alien registration act, but does not require carrying the ID at all times. Pennsylvania claim their law is NOT preempted by the Federal law, neither as explicit preemption, nor conflict preemption. Supreme Court ruled (in 6-3 decision) that Federal law trumps over State law in this case as the state law would cause an obstacle in implementing the Federal law.

How is this applicable to the present day situation? This decision basically says that only Federal government can pass treaties and statutes (laws) regarding aliens, which is a part of the foreign affairs (policy). Judge Bolton have cited this case as part of her reasoning in enjoining some of AZ's SB1070 provisions.

However, consider the following: this decision is about limits of Federal law vs. State Law and pre-emption, NOT about immigration law. The two laws are about the same area, and have slightly different implementation. While immigration is a part of the decision, it is considered "dicta", or incidental, not the primary focus of the decision. Thus, relying on the dicta for reasoning can be problematic, esp. when it's a dicta that's almost 70 years old. 

Why enjoined?

Because it attempts to create state immigration scheme by altering penalties established by Congress under Federal registration scheme.

Analysis

There are multiple angles about this issue:

a) if AZ law exactly matches, and not "alter" alien registration (immigration), will it be then okay?
b) or is AZ prevented from penalizing in ANY WAY people who don't carry papers? If so, why?
b1) is it because of "double jeopardy"?
b2) or is it because of "dicta" remark from Hines vs. Davidowitz? (see sidebar)

Double Jeopardy?

b1) There *could* be an argument that not registering is ultimately a Federal crime, and it is not up to the state to punish the offenders. However, as explained in "SB1070 and Double Jeopardy", there are plenty of precedents where a person can be subject to two separate penalties, one Federal, one state, for the SAME crime. A very recent example: Michael Vick the NFL player. He accepted a plea bargain with the Feds, only to be charged AGAIN by state of Virginia for the same crime: organizing a dog-fighting ring. Thus, the reasoning that you can't punish the offenders twice does not hold water, IMHO.

While it is possible that these double jeopardy "exceptions" are criminal cases, which may not apply to civil cases, but that is rather unlikely, as that would be inconsistent.

Federal "exclusivity" on Immigration Enforcement?

b2) Hines. vs. Davidowitz (see sidebar) is about how to resolve Federal law and state law if they come into conflict, and how to resolve the conflict. The Supreme Court indicated that there is no hard rules regarding this situation, and each circumstance must be weighed carefully. In this case, they ruled for the Federal government because they believe alien registration is part of "foreign affairs", and should be done by Federal government, and a separate state system would have interfered with that.

So this goes back to a)... if the two system exact match, would they then still be considered to be in conflict? Or does Judge Bolton's ruling actually saying that "since the Feds don't enforce their own laws, AZ can't enforce Fed laws (or the state's version of it) either"? Is Judge Bolton relying on the INCIDENTAL remarks in the ruling that "only Feds can regulate anything about immigration" from almost 70 years ago?

AZ Potential Response

AZ can probably argue that there are plenty of cases where both Federal and State have laws covering the same crimes, and many apply to immigration (such as using fake documents, identity theft, and so on). Federal Courts have previously ruled that in many cases that states, even counties and cities, can enforce Federal immigration law, and thus Judge Bolton's ruling may be in conflict with previous rulings.

Why enjoined?

Pre-empted because there is a comprehensive Federal scheme regulating employment of illegal aliens

Analysis

Same argument as Issue 2, basically, and thus, the same analysis applies. If Judge Bolton is basing her ruling on Hines vs. Davidowitz's "dicta" (incidental) remarks, that ruling has since been modified multiple times by various courts.

AZ Potential Response

Same as previous issue.

"Plyler vs. Doe" (457 US 202) (1982) is a court decision which Supreme Court in a 5-4 vote, struck down a Texas law denying education to undocumented alien children, based on Fourteenth Amendment's Equal Protection Clause. This case stated that if the state limits the rights of people (which includes illegal immigrants), the limitation must be examined under "intermediate scrutiny" standard, to determine if it furthers a substantial goal of the state. In this case, Supreme Court found that the children are affected by things they have little control (brought over the border), and the law would have detrimental effect on their well being (due to lack of education), and thus, no substantial state interest can be served by discrimination on this basis.

How is this applicable to the present day situation? AZ can argue that SB1070 (amended) is serving substantial state interest (how it will do so is up to their lawyers). Illegal aliens do have control over their legal characteristic (i.e. they chose to enter US illegally), so it should pass "intermediate scrutiny" standard, and thus, be legal under the Constitution.

How they will resolve the conflict with foreign affairs (policy) is a different problem altogether (see Hines. vs. Davidowitz above).

Why enjoined?

Pre-empted because determining whether alien is removable is a tough decision and officers may arrest legal resident aliens, thus burdening legal aliens (and only Federal government can do that).

Analysis

According to Judge Bolton, legal resident alien's civil rights may be restricted / infringed by the AZ law, and only the Federal government, upon demonstrating a compelling reason, may do so. It is not up to the state.

An example is the relocation of Japanese-Americans by executive order in WW2 into concentration camps. There is no doubt that the civil rights of the Japanese Americans were violated, and in 1944 Supreme Court agreed in a 6-3 decision that there was compelling reason to do so in "Korematsu vs. US" (323 US 214). The decision stands even today.

Or in other words, which is more compelling: the hypothetical threat to civil rights of legal aliens, or the actual/theoretical threat of illegal aliens? I don't know. That's up to lawyers to argue. The judge basically said, "we'll have to study this some more before you can implement this".

Some will argue that the threat of illegal immigration is already evident. However, I believe such threats are overblown. Still, it is up to a judge (or Supreme Court) to determine which is more compelling.

AZ Potential Response

AZ SB1070 specifically requires that no local officers make any determination of whether alien is removable or not. INS will always be consulted. So burden upon legal aliens is... doubtful.

Also, consider the prior decision "Plylar vs. Doe" (see sidebar), which seem to be a far more applicable decision than "Korematsu vs. US", as it is about state rights and illegal immigration.

AZ's argument will likely be that they can demonstrate that the "minor inconvenience" to legal residents does NOT outweigh the benefits they get from the arrest of potential removable aliens, based on Plyler vs. Doe.

The issues at hand are as always, state power vs. Federal power. What the judge and appeals court need to decide are the following:

1) Can the judge relieve INS/ICE/DHS of their responsibility to verify immigration status, as defined by Congressional law?

2) Is immigration an exclusive domain of Federal government, or does State share part of the responsibility? Where does one draw the line?

3) At what point does the state have a substantial interest that is served by burdening the illegal aliens, that makes it legal under 14th Amendment?

The weakest part of Judge Bolton's ruling seem to be centered on the "require verification" issue. The other three issues are somewhat unclear and need further clarification.