Federal judge blocks key parts of Arizona immigration law
The ruling halts implementation of provisions that require police to determine the immigration status of people they stop and suspect of being in the U.S. illegally. An immediate appeal is expected.
By Nicholas Riccardi and Anna Gorman
Los Angeles Times
5:50 PM PDT, July 28, 2010
A federal judge on Wednesday blocked most of a controversial Arizona immigration law just hours before it was to take effect, handing the Obama administration a win in the first stage of a legal battle expected to end up in the U.S. Supreme Court.
U.S. District Court Judge Susan Bolton in Phoenix issued a temporary injunction against parts of the law that would require police to determine the status of people they lawfully stopped and suspected were in the country illegally.
Bolton also forbade Arizona from making it a state crime to not carry immigration documents, and struck down two other provisions as an unconstitutional attempt by Arizona to undermine the federal government's efforts to enforce immigration policy.
In her 36-page decision, Bolton wrote that the provisions would have inevitably "swept up" legal immigrants and were "preempted" by the federal government's immigration authority.
"The court by no means disregards Arizona's interests in controlling illegal immigration and addressing the concurrent problems with crime," she wrote. But, she added, "it is not in the public interest for Arizona to enforce preempted laws."
Gov. Jan Brewer vowed a swift appeal to the U.S. 9th Circuit Court of Appeals. "We would have liked to have seen it all upheld, but a temporary injunction is not the end of it," she said through a smile after an appearance in Tucson. "I look at this as a little bump in the road."
Immigrant rights advocates, who had been gearing up for protests after the law takes effect at 12:01 a.m. Thursday, were ebullient.
"It's a victory for the community," said Lydia Guzman, president of Somos America, or We Are America. "It means justice will truly prevail."
Bolton's decision came as little surprise to many legal experts, who had predicted that the law, SB 1070, would be halted because it appeared to contradict U.S. Supreme Court precedent. Brewer signed the measure April 23, saying it is needed to protect Arizona from violence and lawlessness associated with illegal immigrants entering the country from Mexico.
Half of all people stopped for entering the country illegally are detained on Arizona's southern border.
Civil rights groups and then the Obama administration sued, contending that the measure would lead to racial profiling and interfere with the federal government's ability to regulate immigration. The law would allow Arizona, for example, to prosecute people the federal government might believe have a right to remain in the country, such as asylum seekers.
"While we understand the frustration of Arizonans with the broken immigration system, a patchwork of state and local policies would seriously disrupt federal immigration enforcement and would ultimately be counterproductive," the Justice Department said in a statement. "States can and do play a role in cooperating with the federal government in its enforcement of the immigration laws, but they must do so within our constitutional framework."
Many of the parts of the statute that Bolton, an appointee of President Clinton, allowed to go into effect are largely technical. She preserved a clause that forbids any local entity from creating a policy of less than full enforcement of federal immigration laws, as well as a provision that makes it a misdemeanor to block traffic to solicit work or hire a worker -- an effort aimed at getting rid of day laborers.
But she found that the federal government was likely to prevail in trial in its arguments against the other provisions, making it likely that her temporary order will eventually become permanent, said Andy Hessick, a law professor at Arizona State University.
"It would be very surprising if the permanent injunction were to differ after trial," he said.
The law's author, state Sen. Russell Pearce, predicted in a television interview that the measure would be upheld by the U.S. Supreme Court in a 5-4 vote -- an allusion to the majority of justices who are Republicans. But Gabriel "Jack" Chin, a law professor at the University of Arizona, said the issue may not break down in a partisan manner in the judiciary.
"I think they're going to hesitate to say the United States wants to let a person in because he might be able to give us information, but the state of Arizona can arrest him," Chin said. "For those saying, 'Wait till the conservative wing of the Supreme Court gets their hands on this,' I'm not so sure."
The Supreme Court already will consider another Arizona law this fall. That law dissolves any business that repeatedly and knowingly hires illegal immigrants. The court may signal its view of SB 1070 in that decision.
In Arizona, where the immigration debate has grown to a deafening roar, the discussion was less about legal details and more about how illegal immigration has changed the state.
Faye Yanez, 65, and her husband were leaving a Home Depot in Tucson on Wednesday morning when they heard of the decision. "We feel slighted," said Yanez, a school teacher. "The state should have a right to take care of the state because the federal government isn't doing anything."
Susie Baker, 53, who remodels homes in Tucson, felt differently. "I am thrilled," she said as she headed into the store. "I think Jan Brewer is out of her mind. She is bringing harm to Arizona."
Baker said she often hires Latinos on home projects, and doesn't ask them their immigration status.
"To me, it doesn't matter," she said. "They are willing to do the work."
Politicians' reactions also were divided largely on whether they supported the bill. It received votes from all Republicans in the state Legislature and no Democrats.
The state's two Republican U.S. senators, John Kyl -- who recommended Bolton for the federal bench -- and John McCain said in a statement that they were disappointed by the ruling. "Instead of wasting tax payer resources filing a lawsuit against Arizona and complaining that the law would be burdensome, the Obama administration should have focused its efforts on working with Congress to provide the necessary resources to support the state in its efforts to act where the federal government has failed to take responsibility," they said.
Outside the federal courthouse in Phoenix, Vice Mayor Michael Nowakowski, a Democrat and strong foe of the law, said debate over SB 1070 had been a political sideshow that didn't make the state safer. He dismissed polls showing a majority of voters in Arizona and in the U.S. back the measure.
"Polls are for politicians before elections; they're not for civil rights," said Nowakowski, contending that many civil rights laws would have polled poorly in the 1950s and '60s.
Michelle Dallacroce, a Phoenix-based activist against illegal immigration, said she saw a silver lining in the ruling. "About a year or two ago, during the [presidential] elections, the media had a blackout on what was going on regarding illegal immigration," Dallacroce said.
Now, immigration is constantly on the news. "In 2010," she said, "Arizona has jump-started this major issue."
Riccardi reported from Phoenix, Gorman from Tucson. Times staff writer Nicole Santa Cruz in Los Angeles contributed to this report.
Copyright © 2010, The Los Angeles Times
Published on Wednesday, July 28, 2010 by CommonDreams.org
Darkness at Noon in Arizona: Delayed, But Not Over
by Jeff Biggers
While a federal judge struck down important parts of Arizona's draconian immigration law today, namely the obligatory police check of immigration status, the battle over Arizona's immigration crisis has hardly come to a screeching halt.
Over the past three years, publicity hound Sheriff Joe Arpaio, a Massachusetts-raised former DEA bureaucrat, has been leading "crime suppression sweeps" targeted at Mexican and Latin American immigrants. Arpaio's costly sweeps have led to the deportation or forced departure of over 26,000 immigrants--a quarter of the entire US total, according to the AP.
And why, when crime rates on the Arizona-Mexico border are down, and crime rates across Arizona are at their lowest in decades?
"This is a media-created event," says Pima County Sheriff Clarence Dupnik. "I hear politicians on TV saying the border has gotten worse. Well, the fact of the matter is that the border has never been more secure."
As the Arizona Republic reported, even the borderlands sheriffs disagree with Arpaio and Gov. Jan Brewer's immigrant crime fear-mongering:
Even Cochise County Sheriff Larry Dever, among the most strident critics of federal enforcement, concedes that notions of cartel mayhem are exaggerated. "We're not seeing the multiple killings, beheadings and shootouts that are going on on the other side," he said.
As Arpaio continues to profit from publicity, the death toll of immigrants in the desert are soaring: 40 in Pima County (Tucson area) in the last few months.
Far from any criminal intent, a new report notes that the collapse of climate and clean energy legislation will add to their already record number of environmental refugees from Mexico and Latin America.
Arizona, like the nation, needs immigration reform, not repression.
Not that this is anything new to anyone from Arizona--or vaguely familiar with its history. As a transplanted kid in the 1970s, I learned that the "Five C's" on Arizona seal--cattle, copper, cotton, citrus and climate--not only defined Arizona's historical economic development, but reminded us as students of history that Mexicans and Mexican Americans--illegal or legal--built our state.
And they still do. Until the economy slumps--like the construction industry now in Arizona--or the copper industry in the past. Then, the fear--and the profiting of it--soars again.
Both out-of-state immigrant interlopers, Sheriff Arpaio and Gov. Jan Brewer are latecomers to the politics of Arizona's immigration porn and prison profits.
In this same burning month of July in 1917, another publicity hound sheriff led his own "crime suppression sweep" and rounded up over 1,000 hard-working immigrant copper miners, who were striking for better living conditions in Bisbee. As Katherine Benton-Cohen notes in her brilliant chronicle, Borderline Americans: racial division and labor war in the Arizona borderlands, Sheriff Harry Wheeler simply roared at the rounded up strikers: "Are you American, or are you not?" Wheeler and his cronies illegally and violently placed the copper miners on cattle cars and deported them across the country line.
Wheeler and his anti-immigrant yahoos went down in infamy for the Bisbee Deportation.
Before this latest immigration debacle ever gets untangled in the courts or Congress, Sheriff Arpaio and Gov. Brewer will be no less infamous.
Nor will Arizona's border and immigration issues be over.
Jeff Biggers is the author of The United States of Appalachia, and more recently, Reckoning at Eagle Creek: The Secret Legacy of Coal in the Heartland (The Nation/Basic Books).
Arizona Immigration Law: Court Ruling A Warning To Other States
BOB CHRISTIE 07/29/10 10:07 AM
PHOENIX — Arizona is preparing to ask an appeals court to lift a judge's ruling that put most of the state's immigration law on hold in a key first-round victory for the federal government in a fight that may go to the U.S. Supreme Court.
Gov. Jan Brewer called Wednesday's decision by U.S. District Judge Susan Bolton "a bump in the road" and vowed to appeal.
Protesters in Phoenix went ahead with plans Thursday for a march to the state Capitol and a sit-in at the office of Sheriff Joe Arpaio. The sheriff said if protestors were disruptive, they'd be arrested, and he vowed to go ahead with a crime sweep targeting illegal immigrants.
Paul Senseman, a spokesman for Brewer, said Arizona would ask the 9th U.S. Circuit Court of Appeals in San Francisco later Thursday to lift Bolton's preliminary injunction and to expedite its consideration of the state's appeal.
Bolton indicated the government has a good chance at succeeding in its argument that federal immigration law trumps state law. But the key sponsor of Arizona's law, Republican Rep. Russell Pearce, said the judge was wrong and predicted the state would ultimately win the case.
Opponents of the law said the ruling sends a strong message to other states hoping to replicate the law.
"Surely it's going to make states pause and consider how they're drafting legislation and how it fits in a constitutional framework," Dennis Burke, the U.S. attorney for Arizona, told The Associated Press. "The proponents of this went into court saying there was no question that this was constitutional, and now you have a federal judge who's said, 'Hold on, there's major issues with this bill.'"
He added: "So this idea that this is going to be a blueprint for other states is seriously in doubt. The blueprint is constitutionally flawed."
In her temporary injunction, Bolton delayed the most contentious provisions of the law, including a section that required officers to check a person's immigration status while enforcing other laws. She also barred enforcement of parts requiring immigrants to carry their papers and banned illegal immigrants from soliciting employment in public places – a move aimed at day laborers that congregate in large numbers in parking lots across Arizona. The judge also blocked officers from making warrantless arrests of suspected illegal immigrants.
"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," said Bolton, a Clinton administration appointee who was assigned the seven lawsuits filed against Arizona over the law.
Other provisions that were less contentious were allowed to take effect Thursday, including a section that bars cities in Arizona from disregarding federal immigration laws.
The 11th-hour ruling came just as police were preparing to begin enforcement of a law that has drawn international attention and revived the national immigration debate in a year when Democrats are struggling to hold on to seats in Congress.
The ruling was anxiously awaited in the U.S. and beyond. About 100 protesters in Mexico City who had gathered at the U.S. Embassy broke into applause when they learned of the ruling via a laptop computer. Mariana Rivera, a 36-year-old from Zacatecas, Mexico, who is living in Phoenix on a work permit, said she heard about the ruling on a Spanish-language news program.
"I was waiting to hear because we're all very worried about everything that's happening," said Rivera, who phoned friends and family with the news. "Even those with papers, we don't go out at night at certain times there's so much fear (of police). You can't just sit back and relax."
More demonstrators opposed to the law planned to gather Thursday, with the Los Angeles-based National Day Laborer Organizing Network and the immigrant-rights group Puente saying they would march from the state Capitol.
Lawmakers or candidates in as many as 18 states say they want to push similar measures when their legislative sessions start up again in 2011. Some lawmakers pushing the legislation said they would not be daunted by the ruling and plan to push ahead in response to what they believe is a scourge that needs to be tackled.
Arizona is the nation's epicenter of illegal immigration, with more than 400,000 undocumented residents. The state's border with Mexico is awash with smugglers and drugs that funnel narcotics and immigrants throughout the U.S., and the influx of illegal migrants drains vast sums of money from hospitals, education and other services.
"We're going to have to look and see," said Idaho state Sen. Monty Pearce, a second cousin of Russell Pearce and a supporter of immigration reform in his state. "Nobody had dreamed up, two years ago, the Arizona law, and so everybody is looking for that crack where we can get something done, where we can turn the clock back a little bit and get our country back."
Kris Kobach, the University of Missouri-Kansas City law professor who helped write the law and train Arizona police officers in immigration law, conceded the ruling weakens the force of Arizona's efforts to crack down on illegal immigrants. He said it will likely be a year before a federal appeals court decides the case.
"It's a temporary setback," Kobach said. "The bottom line is that every lawyer in Judge Bolton's court knows this is just the first pitch in a very long baseball game."
In the meantime, other states like Utah will likely take up similar laws, possibly redesigned to get around Bolton's objections.
"The ruling ... should not be a reason for Utah to not move forward," said Utah state Rep. Carl Wimmer, a Republican from Herriman City, who said he plans to co-sponsor a bill similar to Arizona's next year and wasn't surprised it was blocked. "For too long the states have cowered in the corner because of one ruling by one federal judge."
The core of the government's case is that federal immigration law trumps state law – an issue known as "pre-emption" in legal circles and one that dates to the founding of America. In her ruling, Bolton pointed out five portions of the law where she believed the federal government would likely succeed on its claims.
The Justice Department argued in court that the law was unconstitutional and that allowing states to push their own measures would lead to a patchwork of immigration laws across the nation and disrupt a carefully balanced approach crafted by Congress.
Arizona argues that the federal government has failed to secure the border, and that it has a right to take matters into its own hands.
For now, the federal government has the upper-hand in the dispute, by virtue of the strength of its arguments and the precedent on the pre-emption issue. The Bush administration successfully used the pre-emption argument to win consumer product cases, and judges in other jurisdictions have looked favorably on the argument in immigration disputes.
"This is clearly a significant victory for the Justice Department and a defeat for the sponsors of this law," said Peter Spiro, a constitutional law professor at Temple University who has studied immigration law extensively. "They will not win on this round of appeals. They'll get a shot after a trial and a final ruling by Judge Bolton."
Associated Press Writers Paul Davenport and Jacques Billeaud contributed to this report.