US Politics: Why Supporters of Arizona's Immigration Law Can Be Optimistic (Haddigan)

Lee Haddigan, one of EA's analysts on US politics, writes:

On Wednesday, 28 July, a day before Arizona's immigration legislation, SB 1070, was due to become law, District Judge Susan R. Bolton issued a preliminary injunction that temporarily prohibited the state from applying certain provisions of the statute. Her decision has provoked widespread comment, not just within the US but also in other countries, with both the BBC and Sky in Britain featuring the story prominently.

Most discussion, national and international, has portrayed the ruling as a victory for the Obama Administration and a defeat of the intent of Arizona’s law. However, study of the 36 pages of Judge Bolton’s reasoning and an evaluation of what the law actually intends to do reveal that Arizona legislators who supported SB 1070 can still celebrate. There are those provisions that did become law on Thursday, and the judge’s review offers grounds for optimism that, with some minor alterations, the sections that did not become law could survive a challenge in the future by the Department of Justice.

Judge Bolton granted the right of Arizona, in theory, to pass legislation dealing with illegal aliens. To sum up the implied message, "This is where you went wrong, now go fix it if you can."

The review of SB 1070 began with the observation that the law was enacted against “a backdrop of rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns.” So Judge Bolton started with the recognition that Arizona does suffer from problems that need addressing. And in her conclusion, she asserted that the Court “by no means disregards Arizona’s interests in controlling illegal immigration and addressing the concurrent problems with crime".

Often overlooked in discussion of SB 1070 is what the law is actually meant to achieve. It is not the mass detention and deportation of illegal aliens. Instead, it intends to force illegal immigrants to leave the state of their own accord, deny illegal immigrants the economic means to live in Arizona and negating the assumption that their presence is tolerated. Section 1 of SB 1070 referred to this strategy as "attrition by enforcement".

The Federal Government attempted to enjoin the whole law because this “overall statutory scheme” was an attempt to “set immigration policy at the state level and interferes and conflicts with federal immigration law". Thus, the motion argued, SB 1070 is unconstitutional because of the Supremacy Clause (see the earlier post on EA).

Judge Bolton refused the Federal Government’s argument, stating that the intent of the Act does not “create a single and unified statutory scheme incapable of provision by provision analysis”. In essence, she conceded that Arizona has the right to pursue the policy of "attrition through enforcement" when the provisions of the law do not infringe upon the federal right to regulate immigration.

Bolton allowed that the Supreme Court “has consistently ruled that the federal government has broad and exclusive authority to regulate immigration". But she followed this assertion of the broad powers of Congress on immigration by quoting a Supreme Court decision, De Canas v. Bica (1976), that narrowed the field where the federal government possessed exclusive authority. While the Court held that the “[p]ower to regulate immigration is unquestionably exclusively a federal power”, it also concluded that not all state laws “which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional power”.

Judge Bolton also specifically used the De Canas precedent to uphold a section of SB 1070 that the government challenged as a preemption of the federal right to regulate immigration. Part of Section 5 makes it “illegal for a person in violation of a criminal offense" to induce a person to come to Arizona, or hide them when they are in the state, if they know that the person is an unauthorized alien. The government asked for this section to be enjoined because it preempted federal laws on immigration.

De Canas, the Judge declared, defined the regulation of immigration as deciding “who should or should not be admitted into the country, and the conditions under which a legal entrant may remain”. A state law with illegal aliens as its subjects does not “render it a regulation of immigration”. As long as the state does not try to decide who should or should not be allowed to enter the United States, and does not stipulate the requirements for a legal entrant to remain in the country, then it can pass laws to deter illegal aliens from residing in their state.

Where Judge Bolton did prohibit sections of SB 1070 from becoming law on Thursday, she also at times indicated the grounds on which it could be amended to counter the enjoinment. She granted the Federal Government’s motion to prohibit a sentence which, she said, could only be read as making it mandatory for police to check the residency status of every person, including citizens, that they arrested.

Arizona, the Judge remarked, had explained at the hearing should be read as “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”. This inclusion of Arizona’s explanation of the meaning of the sentence, which Judge Bolton did not have to give, was footnoted by her with the wry comment that “Arizona acknowledges that this sentence of Section 2(B) ‘might well have been more artfully worded’”. To my eyes that means "Go away and write that sentence as you explained it at the court hearing."

In another footnote, Bolton politely reminds the reader that many Arizona law enforcement officers do not need a new law to check the immigration status of a person who they have encountered in the course of a “lawful stop, detention or arrest,” as they “already have the discretion to verify immigration status if they have reasonable suspicion”.

In simple words, supporters SB 1070 argue that they are not surpassing federal law but to overcome resistance within the state to the full implementation of federal law. Governor Jan Brewer of Arizona appeared on Fox News on Wednesday night to emphasise “that police officers can do their job, they can enforce federal laws and their supervisors are not able to tell them not to enforce them”.

Those who see Wednesday’s decision by Judge Bolton as a defeat of SB 1070 are being a little premature. In fact, her ruling established the right of Arizona to legislate on its intent to force illegal aliens out of the state by "at4trition through enforcement" (an attempt that, according to some news channels, is already achieving the desired result). Where the Judge did enjoin provisions of the law, she also hinted at the means whereby Arizona could amend SB 1070 to fix the problem. And she allowed the right of the citizens of Arizona to sue recalcitrant state officials who do not enforce the federal laws on the books.

Of course, this is only the first hurdle for SB 1070 to overcome, and legal rulings on the civil rights issues in the law have yet to be heard. But for supporters of the Arizonan law, I would suggest that there is cause to be optimistic.