Thursday, September 6, 2012
Judge Bolton Declines Pre-Enforcement Injunction Against Arizona's SB1070's "show your papers" Provision
Judge Susan Bolton, who entered a preliminary injunction against portions of Arizona's controversial SB1070 in July 2010, including the controversial "show me your papers" provision, section 2(b), has issued a new order and opinion in del Sol v. Whiting, refusing to enjoin section 2(b) in light of the Supreme Court's decision in Arizona v. United States last June.
Recall that the Court held several sections of SB1070 preempted by federal law (thus essentially affirming Judge Bolton's initial decision, as affirmed by the Ninth Circuit), but found that Section 2(b) could be read to avoid the concerns of conflict. While section 2(b) requires every Arizona law enforcement officer to verify the immigration status of every person stopped, arrested, or detained if the officer has a “reasonable suspicion” that the person is in the country unlawfully, the Court provided several instances where 2(b) might be compatible with federal law and thus refused a pre-enforcement injunction.
Thus, on the preemption challenge, Judge Bolton's opinion is squarely within the dictates of Arizona v. United States.
However, the challengers also raised Equal Protection and Fourth Amendment challenges. Bolton's opinion subsumes these into the preemption challenge based on the Supremacy Clause. She quotes the Court in Arizona v. US as stating that its "opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect,” adding emphasis. Yet it is unclear how the Court's opinion could possibly foreclose the "other constitutional challenges" even pre-enforcement given that the issue before the Court was solely preemption (a limitation Justice Roberts stressed at the start of the oral arguments).
Bolton's opinion states that she "will not ignore the clear direction in the Arizona opinion that subsection 2(B) cannot be challenged further on its face before the law takes effect," but certainly the Court could not give direction, clear or otherwise, regarding issues that were not before it.