Today, Judge Susan Bolton stopped [PDF] the most controversial provisions of Arizona's immigration-enforcement law, SB 1070, from going into effect but declined to put the entire law on hold as the Obama Justice Department had requested. In a 38-page ruling, Judge Bolton let stand most of the law's 13 sections but found that certain provisions satisfied the requirements for a preliminary injunction -- irreparable harm and likelihood of success at trial. The Justice Department had argued that the Arizona law unconstitutionally usurped federal power to regulate immigration. The judge put the following provisions on hold:
Portion of Section 2 of S.B. 1070 -- requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained, or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person
In addition to finding that the Justice Department was likely to succeed in its claim that federal law preempts this portion of SB 1070, Bolton suggested it would place an undue burden on federal immigration-enforcement officials and legally present immigrants.
Section 3 of S.B. 1070 -- creating a crime for the failure to apply for or carry alien registration papers
States are prohibited from applying immigration law "inconsistently with the purpose of Congress," so the judge found they can't create a separate state-level crime with further penalties for violating federal immigration law. Bolton also wrote that the section posed an obstacle to uniform federal regulation of immigration law.
Portion of Section 5 of S.B. 1070 -- creating a crime for an unauthorized alien to solicit, apply for, or perform work
As with Section 3, the judge found that the federal government has not set penalties for unauthorized work and thus this portion is likely to be preempted by federal law.
Section 6 of S.B. 1070 -- authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States
Judge Bolton objected to this provision mainly on the basis that there were no clear criteria for "probable cause to believe the person has committed a public offense" and that there is a "substantial likelihood" that officers will arrest those who have committed no crime.
Thankfully, the narrowly tailored ruling stops these egregious portions of the law -- those that sparked the public outcry over possible civil-rights violations -- from going into effect. But as I've argued before, neither immigrant-rights supporters nor enforcement advocates are likely to be satisfied. It is, however, a vindication of the Justice Department's strategy of suing on the basis of federal preemption as opposed to civil rights. Many had criticized the decision and speculated that the administration was avoiding the race issue. In the end the Obama Justice Department chose the stronger legal argument, as opposed to the more "sincere" one, allowing it to secure this minor win.
-- Gabriel Arana
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