US Politics: Why Supporters of Arizona's Immigration Law Can Be Optimistic (Haddigan)

Lee Haddigan, one of EA's analysts on US politics, writes:

On Wednesday, 28 July, a day before Arizona's immigration legislation, SB 1070, was due to become law, District Judge Susan R. Bolton issued a preliminary injunction that temporarily prohibited the state from applying certain provisions of the statute. Her decision has provoked widespread comment, not just within the US but also in other countries, with both the BBC and Sky in Britain featuring the story prominently.

Most discussion, national and international, has portrayed the ruling as a victory for the Obama Administration and a defeat of the intent of Arizona’s law. However, study of the 36 pages of Judge Bolton’s reasoning and an evaluation of what the law actually intends to do reveal that Arizona legislators who supported SB 1070 can still celebrate. There are those provisions that did become law on Thursday, and the judge’s review offers grounds for optimism that, with some minor alterations, the sections that did not become law could survive a challenge in the future by the Department of Justice.

Judge Bolton granted the right of Arizona, in theory, to pass legislation dealing with illegal aliens. To sum up the implied message, "This is where you went wrong, now go fix it if you can."

The review of SB 1070 began with the observation that the law was enacted against “a backdrop of rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns.” So Judge Bolton started with the recognition that Arizona does suffer from problems that need addressing. And in her conclusion, she asserted that the Court “by no means disregards Arizona’s interests in controlling illegal immigration and addressing the concurrent problems with crime".

Often overlooked in discussion of SB 1070 is what the law is actually meant to achieve. It is not the mass detention and deportation of illegal aliens. Instead, it intends to force illegal immigrants to leave the state of their own accord, deny illegal immigrants the economic means to live in Arizona and negating the assumption that their presence is tolerated. Section 1 of SB 1070 referred to this strategy as "attrition by enforcement".

The Federal Government attempted to enjoin the whole law because this “overall statutory scheme” was an attempt to “set immigration policy at the state level and interferes and conflicts with federal immigration law". Thus, the motion argued, SB 1070 is unconstitutional because of the Supremacy Clause (see the earlier post on EA).

Judge Bolton refused the Federal Government’s argument, stating that the intent of the Act does not “create a single and unified statutory scheme incapable of provision by provision analysis”. In essence, she conceded that Arizona has the right to pursue the policy of "attrition through enforcement" when the provisions of the law do not infringe upon the federal right to regulate immigration.

Bolton allowed that the Supreme Court “has consistently ruled that the federal government has broad and exclusive authority to regulate immigration". But she followed this assertion of the broad powers of Congress on immigration by quoting a Supreme Court decision, De Canas v. Bica (1976), that narrowed the field where the federal government possessed exclusive authority. While the Court held that the “[p]ower to regulate immigration is unquestionably exclusively a federal power”, it also concluded that not all state laws “which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional power”.

Judge Bolton also specifically used the De Canas precedent to uphold a section of SB 1070 that the government challenged as a preemption of the federal right to regulate immigration. Part of Section 5 makes it “illegal for a person in violation of a criminal offense" to induce a person to come to Arizona, or hide them when they are in the state, if they know that the person is an unauthorized alien. The government asked for this section to be enjoined because it preempted federal laws on immigration.

De Canas, the Judge declared, defined the regulation of immigration as deciding “who should or should not be admitted into the country, and the conditions under which a legal entrant may remain”. A state law with illegal aliens as its subjects does not “render it a regulation of immigration”. As long as the state does not try to decide who should or should not be allowed to enter the United States, and does not stipulate the requirements for a legal entrant to remain in the country, then it can pass laws to deter illegal aliens from residing in their state.

Where Judge Bolton did prohibit sections of SB 1070 from becoming law on Thursday, she also at times indicated the grounds on which it could be amended to counter the enjoinment. She granted the Federal Government’s motion to prohibit a sentence which, she said, could only be read as making it mandatory for police to check the residency status of every person, including citizens, that they arrested.

Arizona, the Judge remarked, had explained at the hearing should be read as “that only where a reasonable suspicion exists that a person arrested is an alien and is unlawfully present in the United States must the person’s immigration status be determined”. This inclusion of Arizona’s explanation of the meaning of the sentence, which Judge Bolton did not have to give, was footnoted by her with the wry comment that “Arizona acknowledges that this sentence of Section 2(B) ‘might well have been more artfully worded’”. To my eyes that means "Go away and write that sentence as you explained it at the court hearing."

In another footnote, Bolton politely reminds the reader that many Arizona law enforcement officers do not need a new law to check the immigration status of a person who they have encountered in the course of a “lawful stop, detention or arrest,” as they “already have the discretion to verify immigration status if they have reasonable suspicion”.

In simple words, supporters SB 1070 argue that they are not surpassing federal law but to overcome resistance within the state to the full implementation of federal law. Governor Jan Brewer of Arizona appeared on Fox News on Wednesday night to emphasise “that police officers can do their job, they can enforce federal laws and their supervisors are not able to tell them not to enforce them”.

Those who see Wednesday’s decision by Judge Bolton as a defeat of SB 1070 are being a little premature. In fact, her ruling established the right of Arizona to legislate on its intent to force illegal aliens out of the state by "at4trition through enforcement" (an attempt that, according to some news channels, is already achieving the desired result). Where the Judge did enjoin provisions of the law, she also hinted at the means whereby Arizona could amend SB 1070 to fix the problem. And she allowed the right of the citizens of Arizona to sue recalcitrant state officials who do not enforce the federal laws on the books.

Of course, this is only the first hurdle for SB 1070 to overcome, and legal rulings on the civil rights issues in the law have yet to be heard. But for supporters of the Arizonan law, I would suggest that there is cause to be optimistic.

US Politics: The Federal Government v. Arizona on Immigration (Haddigan)

Lee Haddigan writes for EA:

Last Tuesday, the US Department of Justice announced the much-anticipated challenge by the Federal Government challenge to Arizona’s new immigration law. In a brief filed in the Federal Court of the District of Arizona, the Department asked for a temporary enjoinment (to precede a permanent one) against S.B. 1070, due to become law on 29 July on the grounds that the legislation is unconstitutional.

US Politics: The Arizona Immigration Law (Haddigan)

If the decision to fight S.B. 1070 was expected, the grounds for the Federal Government’s case were less so: instead of opposing Arizona’s new law as an interference with the 4th Amendment to the Constiution, they decided to use the Supremacy Clause as the basis for defeating the controversial legislation. Attorney General Eric Holder said the Federal Government have not ruled out fighting S.B. 1070 over the issue of racial profiling but will wait to see how the law is implemented before a commitment to take Arizona to court over civil rights violations.

One reason for the government’s position is that the American Civil Liberties Union and other organisations, aided by a "friend of the court" brief from the Mexican Government, have already challenged the law on civil rights grounds. The federal submission has remarkably little to say on civil rights consequences --- for instance, it does not question the provision of what "reasonable suspicion" means when an officer asks to see papers showing a suspect’s immigration status --- other than to question a law that calls for the incarceration of legal citizens who may not have their residency qualifications on their person.

The brief also mentions that some illegal aliens are resident in the United States with the express approval of the federal authorities but are waiting on the necessary papers to prove that to an arresting officer. This latter point, however, is developed to add weight to the claim that the Arizona state law interferes with the aims of federal immigration legislation, a conflict of interest that is unconstitutional under the Supremacy Clause.

By invoking the doctrine that federal law pre-empts (has "supremacy" over) state law in matters concerning immigration the Obama administration has set the stage for a long drawn-out battle, with a probable final recourse to the Supreme Court. It is a conflict that will arouse passions on both sides of the debate because it deals with an issue that has stimulated political debate in the United States ever since the Constitution was ratified.

The argument revolves around how the document is to be interpreted. One side --- the originalist or strict constructionalist --- regards the words of the Founding Fathers, expressly stated, as the only basis for deciding whether or not a law is constitutional. The other --- the loose interpretation or living document side --- contends that the Constitution is only a framework that over time and changing circumstances provides a guide to making laws in modern times.

Herein lays the political importance of this particular instance of the Federal Government using the Supremacy Clause. For S.B. 1070 is constitutional, or unconstitutional, depending on which side (for originalis,t read conservative; for liberal, read living document) interprets the new law.

The conservative opponents of the recent actions of the Department of Justice will point out that the Constitution does not give the Federal Government the power to legislate exclusively on immigration measures. The 10th Amendment states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

For the originalist, since the Constitution does not delegate to the Federal Government the power to determine how immigration is to be handled, then the states have the power reserved to themselves.

Liberals contend, however, that while the Federal Government’s exclusive right to deal with immigration is not stated in the Constitution, it is implied by the Government’s right to determine the naturalization process for foreign-born citizens. Over time, the duty to ascertain how naturalization is to be awarded evolved into --- as shown by the federal laws dealing with immigration --- control over the means of deciding who can and cannot enter the United States legally.

The Supremacy Clause states that:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

The relevant part of this clause is the stipulation that "the supreme Law of the Land" shall be that "made in Pursuance" of the Constitution. Under the "loose interpretation" reasoning, the issue of immigration may not be mentioned in the Constitution, but it has become a power of the federal government through legislation on naturalization concerns as and when they arose. The brief argues that the “Constitution affords the federal government the power to “establish an
uniform Rule of Naturalization”, and as Congress has passed immigration laws dealing with the "rules of Naturalization’"those powers are now enshrined in federal law –-- the "supreme Law of the Land".

The conflict between federal v. states rights over immigration is a technical debate that will see, unless the law is invalidated on undeniable civil rights arguments, the matter go all the way to the Supreme Court. Supporters of S.B 1070 have called the federal action "baseless", with Governor Brewer of Arizona even labeling it "outrageous".  But conservative commentators have yet to concentrate their attention on two arguments in the brief that will provoke a sense of moral outrage among supporters of S.B. 1070.

The first concerns the matter of national security. The federal government is arguing that the Department of Homeland Security was established, in part, to deal with the threat immigration posed to public safety. The brief maintains that it is a federal "priority", through its “significant enforcement discretion”, to “principally target aliens engaged in or suspected of terrorism … aliens convicted of crimes, with a particular emphasis on violent criminals”.  The government’s position continues that Arizona’s law interferes with the federal "supremacy" in investigating and prosecuting the above "violent criminals" and "terrorists".

This reminds the more sedentary reader of arguments used by the FBI to take over cases from local "hick" police departments in numerous television shows and films; the local force is not capable of investigating serious crimes, and actually only makes things worse, so the federal agency (the clever guys in Washington) must intervene to save the day.  The claim of the Obama administration that Arizona cannot legislate its own state laws and use its"‘police powers" to protect its citizens from violent criminals, because it preempts the priorities of the DHS and other federal agencies, is certain to provoke indignation.

The brief continues that S.B. 1070 “will interfere with vital foreign policy and national security interests by disrupting the United States’ relationship with Mexico and other countries”.No-one doubts that the president retains all authority to deal with America’s foreign relations with other sovereign nations, but this apparent pandering to the complaints of the Mexican government, (especially in light of the country’s own alleged harsh immigration law, will not endear the administration to conservatives. With the "friend of the court" brief submitted by Mexico submitted in the ACLU challenge and President Calderon’s criticism of the law at the White House, President Obama has opened the doors for conservatives to speculate on his commitment to prioritizing the defense of American interests, a potentially damaging charge.

On the day the federal brief was filed,20  Arizona lawmakers sent a letter to the US Attorney General explaining how their bill did not violate civil rights laws, but the Supremacy Clause argument seemed to take them somewhat by surprise.

Yet that manoeuvre may backfire on the administration politicall. Even the most die-hard supporter of S.B. 1070 would admit there are concerns that the "reasonable suspicion" for asking for proof of legal residence could lead to charges of racial profiling. But, with the claim that the federal government has priority in dealing with illegal violent criminals within the borders of Arizona, the Obama administration has ensured the struggle over this new law will stir more emotional posturing.