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Immigration Law Experts Debate Next Legal Steps for Arizona

July 28, 2010 at 12:00 AM EDT
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A Federal judge blocked several key provisions in Arizona's Immigration Law that goes into effect Thursday. Gwen Ifil gets both sides on today's ruling.
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GWEN IFILL: For more on the impact of today’s ruling, we turn to two experts in immigration law.

Michael Hethmon is general counsel for the Immigration Law Reform Institute. And Steven Gonzales teaches constitutional law at the Phoenix School of Law.

Steven Gonzales, were you happy with today’s ruling?

STEVEN GONZALES, constitutional law professor, Phoenix School of Law: Well, I think so.

I think that the plaintiffs, Department of Justice included, pretty much got everything they wanted of substance. And as I said previously on this show, there were some very serious threshold constitutional issues here about the state interfering in federal power that have very long-term consequences. So I think the judge made the right call.

GWEN IFILL: Michael Hethmon?

MICHAEL HETHMON, Immigration Law Reform Institute: I’m relieved.

As one of the attorneys that was part of the senator’s brain trust that has worked on these issues over the years, it could have been a lot worse. We could have had a very radical judge.

But the judge’s ruling was very interesting. On these key points that she preliminarily enjoyed, almost all of them were technical. And it will be very easy to fix. As a matter of fact, I was down in Virginia meeting with Virginia legislators on how to do their version of SB-1070 when we got the bill. And it was a sad face when the order came off the machine. And, as we worked through it provision by provision, they were quite relieved.

GWEN IFILL: So, when Judge Bolton says today that in fact the state had overreached its authority, you think that’s a technicality?

MICHAEL HETHMON: I think Judge Bolton gave the state of Arizona a B-minus. She said it was a good effort. You had a hard problem to work with.

And spelled out the very technical items that are needed to address 75 percent of the problems she identified in the bill. It’s not going to go first to appeal or to the Supreme Court. It’s going to go back to the state legislature. And they’re going to make these technical amendments. And it’s going to be an improved and better bill that faces judicial scrutiny.

GWEN IFILL: Professor Gonzales, is that what happens next, from your point of view?

STEVEN GONZALES: I have a completely different take.

The way I look at it, in looking at the opinion, the points fall along basically two lines, two columns, if you will. Pretty much anything in which the state tried to get involved in federal regulation of immigration, the judge said no, no, you can’t do that. That’s federal power.

The very — the things that the judge upheld had to do with the state regulating employers and other traditional areas in which states have always been involved in. So, I think, if you look at it that way, it looked to me very clear that the federal courts here are — at least at the trial level so far, are — have struck down this law.

I think it’s left toothless. It’s pretty much — I would agree it probably needs to be rewritten for those who support it, but that’s because it was completely decimated by this decision.

GWEN IFILL: But you just heard Michael Hethmon say that other states who already have versions of this law under way don’t feel the least bit deterred by this. Do you think that this drives all of those other states — it shuts down their efforts to try to copy what Arizona did?

STEVEN GONZALES: Well, I think it’s certainly a game-changer.

From a strict legal technical standpoint, the precedential value is not binding in other jurisdictions. It’s more what we call persuasive value. But, certainly, any state that is looking at pressing some type of legislation like Arizona’s has to think twice that now there’s a federal court saying that it’s unconstitutional.

GWEN IFILL: Governor Brewer said today, Mr. Hethmon, today that this is one of — there’s a sign to the federal government they need to step up their game at the border. Did the judge speak to that, in your reading of her ruling?

MICHAEL HETHMON: Sure. Right in the very first line of the ruling, it says, against a backdrop of rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns, the Arizona legislature acted.

And I think she shares the concerns of the state of Arizona. She simply wants to make sure that this law, in its final form, will be fully constitutional and consistent with our concepts of federalism and federal supremacy.

GWEN IFILL: Well, is the solution then for the state to rewrite the law, or for the federal government to step in and to pass stronger law? Which would you prefer to see happen?

MICHAEL HETHMON: Ultimately — ultimately, comprehensive immigration enforcement will have to happen at the federal level.

But the federal government is not acting. And until they change their game plan, you will see more and more of these state-type measures. And they will be effective, I think, perhaps in a limited sort of way, but they will still be effective.

GWEN IFILL: Professor Gonzales, does this take the state efforts off the table, or does it throw a gauntlet down now to the federal government to step in?

STEVEN GONZALES: Well, I would like to say that the federal government will now step forward and do what it needs to do, but the reality is, Congress and the successive administrations in the White House have been paralyzed because they’re really just reflecting the polarization of Americans on this topic.

So, I think, until we get some strong consensus on which way to go, I’m not too optimistic, particularly in an election year. I do think, though, now, with the federal court standing in the way and standing up and basically, like an umpire, blowing the whistle and saying, foul, I think that definitely is going to put a pause in what the states, at least some states, are thinking of doing.

And don’t forget the states themselves are divided, too. Not all states are doing this. Some of them have strong majorities that feel the other way.

GWEN IFILL: Was that foul? Was the whistle blown today, Mr. Hethmon?

MICHAEL HETHMON: It wasn’t a whistle blown.

I think Arizona got back their corrected midterm exam. And the teacher said, you did well. You’re going to have to do better. And I’m sure they — the Arizona legislature and the governor and her counsel are already planning to do just that.

GWEN IFILL: Michael Hethmon of the Immigration Reform Law Institute, and Steven Gonzales of the Phoenix School of Law, thank you both very much.

MICHAEL HETHMON: You’re welcome.