Wednesday, July 28, 2010
Federal District Judge Susan Bolton has issued her opinion enjoining the enforcement of certain sections of Arizona SB 1070 including:
- Portion of Section 2 of S.B. 1070, codified as A.R.S. § 11-1051(B): 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
- Section 3 of S.B. 1070, codified as A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien registration papers
- Portion of Section 5 of S.B. 1070, codified as A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply for, or perform work
- Section 6 of S.B. 1070, codified as A.R.S. § 13-3883(A)(5): 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's opinion considers the statutory provisions separately, noting that the statutory scheme is not singular and that the statute provides for severability. The opinion found that the Government demonstrated a likelihood of success on the merits in its arguments for the unconstitutionality of the above provisions, applying preemption doctrine under the supremacy clause. (We've previously discussed the filing of the DOJ complaint here and the preemption arguments here).
Regarding the irreparable harm requirement, the Judge reasoned the Federal Government would suffer irreparable harm "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." (Opinion at 34).
On the balance of equities, the judge concluded they weighed in favor of preserving the status quo:
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.
(Opinion at 35, citations omitted).
The controversial Arizona statute, scheduled to go into effect July 29, 2010, will thus become effective without the above provisions.
[Update: For a terrific analysis of the Judge's opinion, listen to an interview with Professor Jenny Rivera on NPR here]
[image: SB1070 protest via]