Citing “rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns,” Arizona legislators voted back in April to pass the nation’s strictest immigration enforcement law. Known as Senate Bill 1070, it dramatically expands the role of local police in enforcing federal immigration laws. On Wednesday, one day before the law was set to go into effect, a federal judge blocked several of its key provisions, arguing they were likely unconstitutional. Arizona began using a modified version of the bill on July 29.
Border enforcement in states like Texas and California has pushed the greatest number of immigrants to enter through Arizona, and Governor Jan Brewer says that SB 1070 “represents another tool for our state to use as we work to solve a crisis we did not create and the federal government has refused to fix.” Concern about crime related to the influx reached a high point after the murder of a rancher in southern Arizona by a suspected drug smuggler.
Some of the reasoning for SB 1070 contrasts with figures released by the Arizona Department of Public Safety. They show that from 2002 to 2009 the crime rate for the state dropped by 12 percent. At the same time, crime levels increased by 58 percent in Maricopa County, home to the tough-on-crime Sheriff Joe Arpaio, who for the last two years has directed his officers to target undocumented immigrants. A Pultizer Prize-winning report in the East Vally Tribune found that routine police work has suffered in the county and many criminal investigations have gone unfinished as police attention is diverted to enforcing immigration.
The original law passed by Arizona
Against the backdrop of a gubernatorial and congressional election season, Arizona lawmakers voted in April to add new immigration enforcement statutes and amend others. They compiled the statutes in the “Support Our Law Enforcement and Safe Neighborhoods Act.” Its stated intent: “attrition through enforcement.” In other words, to use the law to make living in Arizona too difficult for undocumented immigrants. The law was similar to measures opposed by former Governor Janet Napolitano before President Obama appointed her Secretary of Homeland Security.
State Senator Russell Pearce (R-Mesa) introduced the bill, but its architect was Kris Kobach, a law professor at the University of Missouri-Kansas City who works with the legal branch of the conservative think tank, Federation of American Immigration Reform.
Several parts of SB 1070 go beyond a federal law that allows police to check immigration status. One section requires that, during “any lawful stop, detention or arrest” by a law enforcement officer, “a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.” Another section mandates that “any person who is arrested shall have the person’s immigration status determined before the person is released.”
One of the most controversial parts of SB 1070 makes it a crime for an “alien” — someone who is not a U.S. citizen — to fail to apply for or to carry registration documents. Elsewhere, the law authorizes police officers to make a warrantless arrest of a person when they have probable cause to believe that person has committed an offense that makes them deportable. Two other sections make it a state crime to smuggle human beings or transport undocumented immigrants.
Seven lawsuits have been filed against Arizona’s law. They include challenges by civil rights groups like the ACLU and the NAACP that allege SB 1070 invites racial profiling. One of the plaintiffs, Jim Shee, is a 70-year-old U.S. citizen of Spanish and Chinese descent who says police have already stopped him twice and asked to see his papers.
A related challenge filed by Tuscon police officer — and naturalized U.S. citizen — Martin Escobar argues he could be sued for engaging racial profiling because there is no “race-neutral criteria or basis to suspect or identify who is lawfully in the United States.” Racial profiling is prohibited by the 14th Amendment, which ensures equal protection regardless of race, sex, national origin or religion.
Two weeks before SB 1070 was set to go into effect, the U.S. Department of Justice sued Arizona on behalf of the Department of Homeland Security. It focused on the argument that only the federal government has the power to make and enforce immigration law. Because Arizona’s law pursues a single goal — “attrition” — government lawyers argue it would “undermine the federal government’s careful balance of immigration enforcement priorities and objectives.” To prevent SB 1070 from causing “irreparable harm” to these priorities, the Department of Justice asked a federal judge to halt the parts of the law it challenged while she finishes hearing the case.
Judge blocks parts of the law
A day before Arizona police were set to begin enforcing SB 1070, key parts of it were blocked by Judge Susan R. Bolton, a Clinton-appointee to the United States District Court of Arizona. After evaluating the Department of Justice’s challenges she wrote that, “preserving the status quo through a preliminary injunction is less harmful than allowing state laws that are likely preempted by a federal law to be enforced.”
Among the provisions Bolton put on hold was a requirement that an officer make a reasonable attempt to determine the immigration status of a person stopped. She also halted a section that made it a state crime for any immigrant to fail to carry proof of their legal status, arguing this would increase “the intrusion of police presence into the lives of legally present aliens (and even United States citizens), who will necessarily be swept up by this requirement.”
Noting the high volume of requests for determinations of immigration status that were likely to come from Arizona under the new law, Bolton said it could “divert resources from the federal government’s other responsibilities and priorities.” She also ruled that police cannot make warrantless arrests of immigrants who they believe are deportable, as “this determination is ultimately made by federal judges.” Finally, Bolton blocked the mandatory detention of individuals, even those arrested for minor offenses, if they cannot verify they are legally authorized to be in the United States.
Which parts of the law remain in effect
Judge Bolton’s decision blocked some sections of SB 1070, but it did not stop the rest of the bill from going into effect on July 29. The Arizona law contains a “severability clause” that “if a provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions.”
The judge left intact a section of the law that bars local governments from limiting enforcement of federal immigration laws, and allows residents to sue those that adopt such policies. The move was welcomed by Sen. Pearce, who said “striking down these sanctuary city policies has always been the No. 1 priority of SB 1070” — a term used by critics to refer to cities that offer assistance or protection to undocumented immigrants. Bolton’s ruling also allows anyone in Arizona who transports, harbors or shields an undocumented immigrant to be be charged with a misdemeanor.
While Bolton halted the part of SB 1070 that makes it illegal for day laborers to seek work in public places, she left in place a provision that makes it a criminal offense for workers to obstruct traffic while they solicit employment. This prompted Pablo Alvarado of the National Day Labor Organizing Network to characterize Bolton’s ruling as “another step toward increased encroachments on the human rights of the people of Arizona and a dangerous precedent for the country.”
The legal fight over SB 1070 is far from over. Lawsuits based on constitutional challenges could go all the way to the U.S. Supreme Court. Governor Brewer called the temporary injunction a “bump in the road” and has appealed the decision. She continues to campaign on the law.
Sheriff Joe Arpaio says he will continue to carry out raids targeting undocumented immigrants in Maricopa County, and has set aside part of the “tent city” section of his jail for arrests related to SB 1070. Federal immigration officials say they will continue to work with local police through programs like 287(g) and Secure Communities that are responsible for the deportation of 26,000 immigrants from Maricopa County since 2007.
Legal experts say Bolton’s injunction is a warning to other states considering laws similar to SB 1070. But politicians in 20 other states have discussed introducing such legislation in 2011 and will likely use the decision to address legal weaknesses in pending proposals. Lawmakers in 35 states are members of the State Legislators for Legal Immigration organization that advised Arizona in writing SB 1070.
Polls show a majority of Americans support Arizona’s law, but even more favor comprehensive immigration reform at the federal level. Still, President Obama and Congress seem unlikely to pass a comprehensive immigration reform measure any time soon. Two of the leading opponents to reform proposals floated by Democratic lawmakers this year are Republican senators from Arizona: John McCain and Jon Kyl.
Meanwhile some Arizona boycotts remain active, including one called by The National Council of La Raza, the nation’s largest Latino advocacy group. Major cities like Los Angeles have also vowed to keep up their boycotts and many musicians say they will still refuse to play in the state.