Today, federal district court Judge Susan Bolton ruled on the United States Department of Justice's motion for a preliminary injunction preventing enforcement of Arizona's SB 1070, largely granting the injunction against the bill's most noxious elements.
As legal opinions go, the 36-page opinion is as lucid as they come for lay readers -- don't be afraid. From the very beginning, the Court makes clear: (1) here's what wasn't challenged; (2) here's what parts of the statute were challenged where the challenge lacks merit; and (3)
here's what I'm striking down. From there, the Court goes on to explain why certain provisions of the Arizona law are invalid as encroachments on the federal prerogative to regulate immigration.
[A preliminary injunction is the means by which a litigant can stop some action before the suggested harm occurs -- in this case, the harm being enforcement of SB 1070. Here as in all cases, it requires you to prove that you're likely to succeed on the legal merits of your claim, that you are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities (fairness) tips in your favor, and that an injunction is in the public interest.]
The first question the Court answers is whether the statute as a whole must be blocked. The United States had argued that because the statute functioned as an integrated whole seeking to take over federal space it must be struck down even though not every part was itself suspect; the Court found, instead, that it was obliged to save as much of the statute as it could.
And, then, those parts. As for the "show your papers upon arrest" provision:
Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully-present aliens because their liberty will be restricted while their status is checked. Given the large number of people who are technically "arrested" but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification. [The Court is also cognizant of the potentially serious Fourth Amendment problems with the inevitable increase in length of detention while immigration status is determined.]...
The United States argues that the influx of requests for immigration status determination directed to the federal government or federally-qualified officials would "impermissibly shift the allocation of federal resources away from federal priorities." State laws have been found to be preempted where they imposed a burden on a federal agency’s resources that impeded the agency’s function.
... For these reasons, the United States has demonstrated that it is likely to succeed on its claim that the mandatory immigration verification upon arrest requirement ... preempted by federal law. This requirement, as stated above, is likely to burden legally-present aliens, in contravention of the Supreme Court’s directive in Hines that aliens not be subject to "the possibility of inquisitorial practices and police surveillance." Further, the number of requests that will emanate from Arizona as a result of determining the status of every arrestee is likely to impermissibly burden federal resources and redirect federal agencies away from the priorities they have established.
The same argument prevails as to SB 1070's requirement of status determination during lawful stops and detentions. As to the "you must carry your papers" clause, the Court says "no, that's the federal government's obligation" and strikes it down as well.
Section 5 of the law states that "it is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state." The United States argued that it chose not to criminalize such behavior; Arizona said that employment law is traditionally a state law concern. On this, the Court again sided with the United States, holding that this sphere was regulated enough by federal law that Arizona's statute represented an intrusion into that space.
Another part of Section 5 "makes it illegal for a person who is in violation of a criminal offense to: (1) transport or move or attempt to transport or move an alien in Arizona in furtherance of the alien’s unlawful presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or shield an alien from detection in Arizona; and (3) encourage or induce an alien to come to or live in Arizona." On this provision, Arizona wins. The Court writes that federal law governs immigration, while this provision "does not attempt to regulate who should or should not be admitted into the United States, and it does not regulate the conditions under which legal entrants may remain in the United States"
Then there's the provision "that an officer may arrest a person without a warrant if the officer has probable cause to believe that 'the person to be arrested has committed any public offense that makes the person removable from the United States.'" But as Justice Alito noted in the Padilla v. Kentucky decision this spring dealing with effectiveness of counsel, it's really, really hard to determine what offenses are deportation-worthy (and see? I bolded this back in April!) -- so this gets struck down too because there's no way Arizona local officers will get it right.
[The amendment to Arizona's human smuggling law is seen as a minor change -- adding a clause that "a peace officer may lawfully stop any person who is operating a motor vehicle if the officer has reasonable suspicion to believe the person is in violation of any civil traffic law" -- and is upheld because it wasn't specifically challenged.]
That's the merits. As to irreparable harm, the Court finds:
If enforcement of the portions of S.B. 1070 for which the Court finds a likelihood of preemption is not enjoined, the United States is likely to suffer irreparable harm. This is so because the federal government’s ability to enforce its policies and achieve its objectives will be undermined by the state’s enforcement of statutes that interfere with federal law, even if the Court were to conclude that the state statutes have substantially the same goals as federal law.
And the last two factors for an injunction are easily met:
A preliminary injunction would allow the federal government to continue to pursue federal priorities, which is inherently in the public interest, until a final judgment is reached in this case.
The Court by no means disregards Arizona’s interests in controlling illegal immigration and addressing the concurrent problems with crime including the trafficking of humans, drugs, guns, and money. Even though Arizona’s interests may be consistent with those of the federal government, it is not in the public interest for Arizona to enforce preempted laws. The Court therefore finds that preserving the status quo through a preliminary injunction is less harmful than allowing state laws that are likely preempted by federal law to be enforced.
Next step: an Arizona appeal to the notorious Ninth Circuit, where you can draw all sorts of fun panels from the judicial pool.
Julie Gulden's diary is where this all started.