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Why Court Challenges against Arizona SB1070 law will fail: does it violate 5th and other Amendment rights on immigration

Updated on March 3, 2015
Protest against AZ SB1070, courtesy of
Protest against AZ SB1070, courtesy of


Arizona's new law SB1070 has caused a huge national controversy, even though it is enjoying nation-wide and state-wide support. It is understandable many have fears that the law can be abused, Both President Obama and Mexican President Calderon have expressed their opinion so. In fact, ACLU and others have vowed to challenge it in court, and Obama had ordered the attorney general to take a close look at the AZ law.

It is my opinion that any challenges in court will fail, and I will explain why. However, I must emphasize I am NOT a lawyer or a law student. Thus, these opinions are purely that of a lay person, with some basic understanding of the laws in question. If you do know law and you find some mistakes, please let me know.

How does a court challenge work

In order to challenge a law in court, one must demonstrate that the law in question is in conflict with an existing law, and the conflict must be resolved by the court, who then must rule. The resolution can be a full overturn, or explain that there is no conflict, or anything in between.

The primary approach expected to challenge SB1070 is the preemption argument, which is sometimes known as "Supremacy Clause". American Civil Liberties Union (ACLU) and some constitution law scholars claim that Arizona law is preempted by Federal immigration laws. The US Constitution specified that only Federal government may enact and enforce immigration laws, not the states. Thus, Arizona law is preempted by the Federal laws on immigration.

The secondary approach is the rights argument, specifically 14th Amendment, in that States shall pass no law abridging any citizen or lawful resident of their Federally guaranteed rights. Their argument would be that the normal citizen or legal resident rights are violated by SB1070, and therefore SB1070 must be repealed.

Some cases have also alleged violations of First Amendment, Fourth Amendment, Fifth Amendment, Fourteenth Amendment, and so on. Some have also argued that immigration arrests are the domain of Federal authorities, not state, county, or city law enforcement. 

(Thanks to for listing the cases in question )

News Report of 2008 Federal Court Decision

A federal appeals court on Wednesday (September 2008) upheld an Arizona law that penalizes businesses that knowingly hire illegal immigrants and requires them to verify the employment status of their workers.

The 9th U.S. Circuit Court of Appeals decision rejected a challenge by business and civil-rights groups that contend the law infringes on federal immigration powers.

The law, intended to lessen the economic incentive for immigrants to sneak into the country, imposes civil penalties on employers by suspending or revoking their business licenses when they are found to have knowingly hired illegal immigrants...

Pre-emption Argument Analysis

While there is no argument that Federal Government does "trump" over the State Government when it comes to immigration laws and enforcement. The exact decision was Plyler v. Doe, 457 U.S. 202 (1987). However, the problem with a challenge is SB1070 is written specifically to MATCH, and not go a step beyond, any Federal laws. Therefore, claiming SB1070 is illegal is ridiculous.

Arizona had been to court before over such laws. In 2008, Arizona had successfully argued that their employer sanction law for employing illegal immigrants before both the district court AND the 9th Circuit Court of Appeals, both of which ruled for the state, in that it had exactly mirrored the Federal legislations, and therefore was NOT pre-empted. Keep in mind that 9th Circuit Court of Appeals is one of the most liberal in the country.

And it wasn't the first time. Arizona had ALSO successfully defended its laws in 2000, and 2005, in Federal courts, against anti-illegal-immigrant policies. In 2000, it's for anti-human-smuggling laws, and in 2005, it was for requiring voting rights verification and restricting benefits to illegal immigrants. They triumphed in both cases.

Kris Kobach, the law professor who helped draft the AZ law, specifically wrote it to match the Federal law, to defeat any pre-emption arguments. Thus, any pre-emption argument will fail, as it had before.

Also, the law specifically states that no state officials will be making any determination whether a suspect is an illegal immigrant or not. Only a Federal official, whether on-scene or in contact with the on-scene state/local law enforcement, can determine immigration status. Thus, this will defeat any question of pre-emption, as nobody at the state/local level is making any determination.

In fact, there is a specific law, passed during Clinton years, called 8 USC 1373, that says the Feds *have* to respond to local or state law enforcement request for immigration status verification. (Thanks for columnist Byron York for pointing that out) So the Feds can't even refuse to help on claim of 'high costs'.

Thus, with my amateur analysis, I predict that ACLU and others who plan to challenge the law on basis of Federal law pre-emption, are doomed to failure.

First Amendment Argument Analysis

ACLU's argument that people's first amendment rights are being violated due to SB1070. If you forgot your Bill of Rights, I'll just tell you... it's your "right to free speech".

According to ACLU, because of SB1070, people who do not speak English to full proficiency will be afraid of contacting any law enforcement in Arizona because of the law, as they can be subject to immigration status checks if they initiate such contact. Thus, their free speech rights are being violated as an indirect consequence of SB1070.

As I said before, I am NOT a lawyer, but I personally don't see this argument working, because if they are authorized immigrants, then there would be no problem at all. if they are NOT authorized immigrants, then they are already an offender. It's a bit like a man calling the police to complain that someone robbed him of half of his illegal drugs. Maybe AZ can develop some sort of a guideline where those reporting crimes are not automatically checked for immigration status, but a violation of First Amendment Rights? That's stretching it a bit.

Fourth Amendment Argument Analysis

Another of ACLU's assertions is that AZ SB1070 violates the "no unreasonable search and seizures" provisions in the Fourth Amendment of the US Constitution.

The ACLU argument is problematic in this regard, because the Supreme Court has already defined what are unreasonable. As per "Terry Stop", reasonable suspicion with articulate-able facts leading to the suspicion may be used to justify the stop and question, and that's exactly what's in SB1070 (and as amended by the House bill). Furthermore, Supreme Court have already permitted discretion-less checkpoints.

Furthermore, from the Wikipedia, "A police officer does not have the authority to arrest someone for refusing to identify himself when he is not suspected of committing a crime. A search incidental to an arrest that is not permissible under state law does not violate the Fourth Amendment, if the arresting officer has probable cause."  If a person refuse to provide ID, that person can be detained (but not arrested) until the proper ID has been established, and in fact, the person may be suspected of multiple misdemeanors and Infractions, both Federal and State, for not carrying proper ID. Would that constitute probable cause? Hmmm...

Fifth Amendment Argument Analysis

Fifth Amendment argument from the ACLU main centered on deprivation of "liberty" without due process. Basically, the complaint is about the lack of appeal process for this entire procedure. The individual(s) seized would have been deported before they can even issue a challenge to the legality of their "seizure" (read: detain and arrest).

I personally find this to be a bit... overblown, but then, ACLU is known to be a bunch of rules lawyers, and it is their job. So the question is... is that a matter of STATE law or FEDERAL law to make sure those seized have their day in court, should they choose to challenge the circumstances of their "seizure"?

ACLU is correct that there seems to be no appeal or challenge process in the procedures. Perhaps there should be, but does that make the whole process unconstitutional? I doubt it. Furthermore, all suspects have to go before a Federal judge before being sent back, unless they volunteer to be deported without a trial. In fact, this is already happening in jails across the country. In California, ICE agents are checking county and state jails for illegal immigrants, taking them to face Federal judge upon completion of their sentence.

USCIS explanations

Permanent resident: if you are a permanent resident age 18 or older, you are required to have a valid green card in your possession at all times.

Fourteenth Amendment Violation Analysis

Fourthteenth Amendment, also known as the "citizenship Amendment", states that no state shall pass laws to reduce ("abridge" in legalese) one's rights, and also all citizens have equal protection, esp. when a certain class of citizen is under-privileged or discriminated, and it does not have to be race, but also gender, age, and so on. 

The main problem with this argument is that there is no such right as "right to be not asked about immigration status". It would be an extreme stretch to argue this from "right of privacy". But then, I am not a lawyer.

In fact, it *is* ALREADY ILLEGAL for legal residents to NOT carry their "green card". and legal aliens (i.e. visitors or work visas) to NOT carry their passport and visas. Immigration laws say so. Really.

There may be an argument about "equal protection" where illegal immigrant can ask to be treated the same as a legal immigrant, but since legal immigrant are already asked to produce papers on demand, that doesn't really help. The only confusion is regarding citizens, as there is no law requiring a citizen to prove his or her citizenship on demand.

Local Police Power Argument Analysis

Do non-Federal law enforcement officials actually have the power to question people's immigration status, or to enforce immigration law? There are a lot of unofficial lawyers that say they don't. However, here's some laws and prior decisions you may not have heard about.

In 1983, the US 9th Circuit Court of Appeals (yes, the same one that ruled for Arizona in 2008) in the case Gonzales v. City of Peoria, ruled it is perfectly legal for state enforcement to enforce Federal immigration laws as long as it does not impair Federal efforts to do the same. This was reaffirmed by US District Court of New Jersey in 2008: local police can enforce Federal laws, including immigration, as long as they don't conflict.

In 1984, the US 10th Circuit Court of Appeals ruled that a state trooper has the power to question a suspect regarding his or her immigration status in the case U.S. vs. Salinas-Calderon. The same court reaffirmed its decision in 1999 in the case U.S. vs. Vasquez-Alvarez that the state law officials have the power to arrest for violations of Federal law, as long as such arrests are authorized by state law.

In 2001, the US 8th Circuit Court of Appeals ruled that a defendant's rights were NOT violated when he was questioned regarding his immigration status in U.S. vs. Rodriguez-Arreola, as the question was asked after a lawful stop (for speeding). In 2002, the decision was reaffirmed by US 10th Circuit Court of Appeals, in U.S. v. Favela-Favela. In this case, a state trooper pulled over a vehicle for traffic violation, and noticed there are 20 occupants, so he asked the driver and occupants immigration status questions. Again, the court says it is perfectly legal for state trooper to ask the question, after a lawful stop.

(I must thank attorney Walter Moore for digging up these decisions and precedents. His own blog post is gone though)

Thus, there are FEDERAL precedents that says local police and state police HAVE the authority to enforce Federal laws, including immigration. They have the power to arrest, if authorized by the state. They CAN ask immigration status questions, LONG BEFORE the passage of Arizona's SB1070.

In fact, a law passed by Congress in 1996 specifically granted powers to state police in some states to enforce immigration laws (citation coming soon)

Thus, this argument is going nowhere either.


The two primary arguments against SB0170 are apparently doomed to failure. This just proves that most people did not really study the law BEFORE they formed their opinion about it. Some of the secondary approaches seem to more substantial, but very "tangential" to the problem at hand.

The problem with the AZ SB1070 is not in itself, but in its potential to be abused, but then any law can be abused. Efforts should be spent on coming up with guidelines to prevent abuse of this law, and establish penalties for abuse.

All this lawyering and protest, while attracting a lot of attention, also diverts attention and MONEY from the real problem: immigration reform.AZ will be forced to spend money on MORE lawyers handling all these challenges, when money can be better spent on other things.


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    • profile image

      francis5k 6 years ago

      interesting hub! thank you!

    • profile image

      Monique 6 years ago

      Thank you for a very well thought out and expressed article on this subject. kudos.

    • SealBeach profile image

      SealBeach 6 years ago

      Amnesty is votes and votes is power!

    • profile image

      Old Poolman 6 years ago

      I'm a little late to this party, but as a resident of Arizona this is a sore spot with me. Bottom line is if someone is in this country legally, they have nothing to fear. If they are here illegally, they are breaking the law pure and simple.

      Smuggling illegals into the country has become big business. Phoenix Arizona is now the kidnap Capital of the world. People are still dying trying to cross the desert to get into Arizona. Areas of our desert are littered with trash left behind by groups of illegals entering our country.

      It is apparent the Feds are not interested in helping Arizona with these problems, so what choice do we have? If nobody will help, you are forced to do something yourself, and Arizona is trying to do that.

      Great hub.

    • kschang profile image

      kschang 7 years ago from San Francisco, CA, USA

      I don't see any current news... You mean Judge Bolton's decision back in July 2010?

      Several other states are contemplating similar bills. Alabama, Rhode Island, and Utah comes to mind... Utah's version, a bit watered down, passed already.

    • profile image

      Fay Paxton 7 years ago

      By now, I suppose you all know that key portions of the immigration law were struck down by a federal judge. States have limited authority regarding immigration. While, Congress has complete authority over immigration. I wrote a hub called "Immigration - Another Dog and Pony Show" because that's exactly what it is. Nonetheless, you have written an excellent hub.

    • profile image

      NoAmnesty 7 years ago

      Three years ago, Arizona approved a law necessitating that all companies use the federal E-Verify system. (E-Verify is an accessible web tool that lets employers confirm that new hires are not illegal aliens.)However, the Obama Administration determined that states ought not to be entitled to order use of E-Verify to confirm that all employees are legal. NumbersUSA, with their 1 million working class advocates, is not ready to stand by and let this occur. They are employing external advice (attorneys) to compose a "Friend of the Court" brief for this case. They will make a case to the Supreme Court that Arizona's compulsory E-Verify bill is completely sensible and consistent with the character and letter of federal immigration law.

    • profile image

      NoAmnesty 7 years ago

      The Federal lawsuit against Arizona is a moot point. The Obaminator wants amnesty and he plans to get it without regard to the courts or congress

    • Pollyannalana profile image

      Pollyannalana 7 years ago from US

      I think Arizona and all other states should go to court to impeach Obama for not protecting us or our borders, especially with all that has already happened. Polly

    • kschang profile image

      kschang 7 years ago from San Francisco, CA, USA

      With the Obama adminstration ready to challenge the AZ law on the basis of pre-emption, it seems they will lose as well. Kinda interesting to see the Federal government lose in Federal court.

    • kschang profile image

      kschang 7 years ago from San Francisco, CA, USA

      I actually did a research and wrote a new hub on it.

      State level charges and Federal level charges are considered "separate sovereigns" and thus are NOT covered under double jeopardy. State and Fed can bring separate charges for the same crime.

    • kschang profile image

      kschang 7 years ago from San Francisco, CA, USA

      @Don Goins -- Interesting theory, but I believe that the Federal civil offense "illegal presence", which is what unauthorized aliens will be charged with, is substantially different from state-level offense "trespass" to render your "double jeopardy" theory moot.

      As for 14th Amendment, I discussed it already. There is no such provision that makes you not necessary to prove that you're a citizen once you become one. I don't know why you think there is one. I am a US citizen myself. I've looked. I can't find such a precedent or clause that says so.

      If your friend can provide the license, it is simple enough for the officer to call Fed-ICE office to check his (and your) immigration status, which is required by the AZ law.

      So again, I don't see where the problem is. Yes, the law has POTENTIAL to be abused. No, I don't think you should toss the whole law just because it CAN be abused. That'd be "throwing the baby out with the bathwater", so to speak.

    • profile image

      Austinguy 7 years ago

      It is absolutely rediculous that Arizona had to write this bill in the first place. The federal government has had little interest in enforcing federal law and that is why AZ did it. I support the bill.

    • JON EWALL profile image

      JON EWALL 7 years ago from usa


      The Arizona Law does not use the verbiage '' illegal ''rather it uses '' unauthorized aliens ''.


    • profile image

      Don Goins 7 years ago

      Yes, it's banned under the 5th amendment. "[no person shall] be subject for the same offense to be twice put in jeopardy of life or limb".

      That's the uncostitutionality of the first part of your article. The second part deals with the 14th amendment (but I think you should have also talked about the 4th amendment as well.)

      You stated that “it *is* ALREADY ILLEGAL for legal residents to NOT carry their “green card”. and legal aliens (i.e. visitors or work visas) to NOT carry their passport and visas."

      No debate there. It is true. The problem lies when a US citizen is pulled over and asked for their green card, work visa, or passport based on the color of their skin or accent.

      When I get pulled over I am asked for license and proof of insurance. But if my neighbor Carlos gets pulled over he might be ask for proof of citizenship. His family has been in the US longer than mine.

      If Carlos responds “I don’t carry that paperwork with me. I am a US citizen.” Does the officer believe him, or hold him until he can prove his citizenship? That’s when the 4th amendment argument comes into play.

      I know, this is a “what if” scenario, but a legitimate concern. With all the cops in Arizona looking out for illegals, one of them is going to make a mistake and pull over a US citizen and demand to see proof of citizenship. That will be the end of SB 1070.

      Now Arizona could get around this flaw if they make everyone carry a passport. I don't think the courts would be opposed to that, although I would feel a bit of my civil liberties are disappearing.

    • kschang profile image

      kschang 7 years ago from San Francisco, CA, USA

      However, AZ also added "trespassing" to the list of charges that illegal immigrants may face. And trespassing is a state-level charge, right? There's really no law that says illegal immigrants cannot face BOTH state and Federal level penalties, is there?

      Besides, if a court rules, they are unlikely to throw out the whole thing, merely for that little part that conflicts. So even at your best case, the court will mandate that the AZ will have to turn over the prisoners to the Feds upon arrest, instead of holding them for state-level fines and jail time. Hardly a "big deal", IMHO, of course.

    • profile image

      Don Goins 7 years ago

      The problem is that Arizona has added is jail time and a fine. After that is satisfied, then the state turns the person over to the Fed and they have fines and jail time.

      That is double jeopardy and that is why Arizona’s law is unconstitutional because Federal law preempts it.

    • kschang profile image

      kschang 7 years ago from San Francisco, CA, USA

      Exactly, Don. AZ SB1070 was written to "match but not exceed" Federal laws, unless it is power in an area that had been left up to the states by previous court decisions. One of the previous laws AZ won in court (2008) was about how it can deny permits/license to business who employed illegal aliens. As the Feds don't regular businesses, but states do, that is NOT an interference with Federal power at all.

    • profile image

      Don Goins 7 years ago

      First, the Arizona Legal Workers Act is constitutional because it requires employers to use E-Verify, which is a Federal Government program. In fact, several states and cities have laws on the books that require employers to use E-Verify.

      Illinios tried to make it illegal for employers to use E-Verify and that was unconstitutional because it interferred with the Federal government.

      Think about it this way. It would be like Texas passing a law requiring all employers to have I-9’s for their employees. Since that is a Federal mandate already, this doesn’t violate the constitution.

      But if Texas adds the requirement that you must turn in applicants that are here illegally to the police, now Texas has violated the constitution. Framers Branch TX is trying to do this with renting to illegal aliens. It has been struck down twice as unconstitutional.

      And we have very conservative judges here in Texas.

    • kschang profile image

      kschang 7 years ago from San Francisco, CA, USA

      Oh, as if our small towns don't use "speed traps" as revenue generators? :) We just do it a bit more legally than others. :D But enough about police corruption. We're way off topic.

    • JON EWALL profile image

      JON EWALL 7 years ago from usa


      I read an article in the paper of some Americans visiting Mexico. They were pulled over in their car by the Mexican police. The police were giving them a ticket for a phony violation.

      The policeman told them if they paid him some money, he would let them go. They paid,

      more than likely many of the police in Mexico are corrupt.

      case closed !

    • kschang profile image

      kschang 7 years ago from San Francisco, CA, USA

      (Oops, I didn't mean to bad mouth our Border Patrol. I simply mean our border is porous enough already)

    • kschang profile image

      kschang 7 years ago from San Francisco, CA, USA

      Interesting point about the Mexican immigration / human smuggling laws, Mr. Ewall. However, how much do the Mexican police enforce it? Are they as lax as our border patrol?

    • JON EWALL profile image

      JON EWALL 7 years ago from usa


      Arizona and other cities in the US are not police states.

      Laws are made by elected officials. The police = enforcement of the law.It's simple, you break a law you are arrested,you are innocent until proven guilty or not guilty and then the guilty are punished. In China,Russia and some other Socialist or Communist countries your

      punishment may be life in prison or possibly death.

      In Mexico it's 2years for the first offense, 10 years for the second offense. In the present day US the illegals are caught,turned over to ICE.ICE in many cases releases the illegal and in some cases send them back to the country of origin for them to try,try again.ICE's operation of doing things don't work.


      Summary of Federal Immigration and Nationality Act Section 8 USC 1324

      "Any person who . . . encourages or induces an alien to . . . reside . . . knowing or in reckless disregard of the fact that such . . . residence is . . . in violation of law, shall be punished as provided . . . for each alien in respect to whom such a violation occurs . . . fined under title 18 . . . imprisoned not more than 5 years, or both."

      Section 274 felonies under the federal Immigration and Nationality Act, INA 274A(a)(1)(A):

      A person (including a group of persons, business, organization, or local government) commits a federal felony when she or he:

      assists an alien s/he should reasonably know is illegally in the U.S. or who lacks employment authorization, by transporting, sheltering, or assisting him or her to obtain employment, or

      encourages that alien to remain in the U.S. by referring him or her to an employer or by acting as employer or agent for an employer in any way, or

      knowingly assists illegal aliens due to personal convictions.

      Penalties upon conviction include criminal fines, imprisonment, and forfeiture of vehicles and real property used to commit the crime. Anyone employing or contracting with an illegal alien without verifying his or her work authorization status is guilty of a misdemeanor. Aliens and employers violating immigration laws are subject to arrest, detention, and seizure of their vehicles or property. In addition, individuals or entities who engage in racketeering enterprises that commit (or conspire to commit) immigration-related felonies are subject to private civil suits for treble damages and injunctive relief.

    • outdoorsguy profile image

      outdoorsguy 7 years ago from Tenn

      Great Hub. some good research.

      you know the word Racist has been thrown around so much the last 18 months that is losing its impact. if the leftists really want to believe we are all racists. have at it. Personally I dont care anymore.

    • sheila b. profile image

      sheila b. 7 years ago

      I really like your intellectual, studied approach to this subject.

    • kschang profile image

      kschang 7 years ago from San Francisco, CA, USA

      Then how do you explain the victories in 2000, 2005, and 2008? They may not have been written by Kobach personally, but the point is Arizona HAD won those court cases, and there really has no compelling reasons for them NOT to win this one. As for who *can* enforce immigration laws, that would depend on how you define "immigration law", wouldn't it?

      Besides, Feds control the borders. Once they're INSIDE the borders, shouldn't it be a state matter? Isn't it also written in the constitution that whatever the power not reserved for the Feds should be left to the states?

      Arizona residents wondered what's the big deal about this law when the previous laws, arguably harsher, didn't receive such attention.

    • profile image

      davide 7 years ago

      Kobach has never won an immigration issue in court. The State only has the right to enforce immigration laws if it is granted by the Feds. Although the Feds do have an agreement with the Arizona and the terms of this agreement are very specific. The current , proposed, law is outside the terms of the agreement, therefore invalid.

    • kschang profile image

      kschang 7 years ago from San Francisco, CA, USA

      1) They took out the word solely in the revision of 30-APR-2010. So that renders most of your concerns moot.

      2) Our immigration policy ALREADY REQUIRES all resident aliens and legal visitors to carry ID at all times. Not carrying them may subject the person to deportation. Perhaps you need to recheck the immigration laws.

      The only thing we did not legislate is requiring CITIZENS to carry IDs. And how can you tell illegal aliens from citizens? Hmmm... Isn't that what the law is trying to do? Or do somehow illegal aliens get to enjoy citizen priviledge (not being made to show ID) when resident aliens do not?

    • profile image

      beeny ballejo 7 years ago

      This is a response from one who is more concerned about the rights of Americans who may be targeted, In addressing this concern. The real issue is, will the Supreme court bury their head in the sand and maintain AZ claim that racial profiling won't occur? even though the Bill states in writing that, race cannot be used SOLELY used in determining status. Solely being the key word.

      This is a clause. Again, it doesn't say race cant be used, it say's race cannot be used Solely. So, do we pretend that racial profiling will not happen in light of the climate in Sherriff Arpaio's Az state? What is the intent of the law? lets look at the document preceding the Constitution, the Declaration of Independence, which gives us great insight into the intent that later manifest and embodies itself in the form of the Constitution and its intent, which speaks of all being endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

      We then have a Constitution that speaks of a more perfect Union, and later amendments were added. For what purpose? of doing just that, making this country a more perfect Union. What is the intent of the 14th amendment? We also know that on the less technical side, that many millions have given there lives for their country, believing that they were protecting the rights of Americans of all stripes and colors. Couldn't we make an argument that this is a slap in the face to all who have given their lives for our freedom. Especially WW2 vets who saw this kind of, show me your papers policy, first hand in Nazi Germany, and also in other places.

      Or will we really on technicalities, and Simon say' Simon didn't say litigation. I am not a lawyer, but I bet if I did study law, I would be able to make an even better case against this Racist law.

    • thevoice profile image

      thevoice 7 years ago from carthage ill

      terrific legal hub well explained detailed thanks