Arizona SB 1070 ruling in federal court on July 28, 2010

This writeup was last updated on July 29.

This is a condensation of Judge Bolton's decision in the SB 1070 case.  The entire official decision, in .pdf format, is online at several places, including
   http://azstarnet.com/pdf_de954332-9a6d-11df-a382-001cc4c002e0.html

This condensation is a "reader's version."  Case citations, citations to statements in the parties' filings, and occasional lapses into repetition and verbosity, have been combed out, hopefully without changing the meaning of the decision.  Footnotes have been incorporated into the text, or dropped if they were pretty minor.

COMMENTS, a very few, have been added by this writer -- his own comments, and from other citizens, as noted.  Citizen comments are always welcome; email to mpj@vtc.net

THE CASE:


IN THE US DISTRICT COURT FOR THE DISTRICT OF ARIZONA
No. CV 10-1413-PHX-SRB

United States of America, Plaintiff
   v.
State of Arizona (and Gov. Brewer in her official capacity), Defendants


I.  SUMMARY


I.A.  OVERVIEW

Against a backdrop of rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns, the Arizona Legislature enacted Senate Bill (SB) 1070, which Governor Janice K. Brewer signed on April 23, 2010.  Seven days later, the Governor signed a set of amendments to SB 1070 under House Bill (HB) 2162.  In this Order, unless otherwise specified, the Court refers to SB 1070 and HB 2162 collectively as "SB 1070," describing the April 23 enactment as modified by the April 30 amendments.

Among other things, SB 1070 requires officers to check a person's immigration status under certain circumstances (Section 2) and authorizes officers to make a warrantless arrest of a person where there is probable cause to believe that the person committed a public offense that makes the person removable from the United States (Section 6).  SB 1070 also creates or amends crimes for the failure of an alien to apply for or carry registration papers (Section 3), smuggling human beings (Section 4), the performance of work by unauthorized aliens, and transporting or harboring unlawfully present aliens (Section 5).

On July 6, the United States filed a Complaint challenging the constitutionality of SB 1070, and a Motion requesting a preliminary injunction to enjoin Arizona from enforcing SB 1070 until the Court determines its constitutionality.  The US argues principally that the power to regulate immigration is vested exclusively in the federal government, and that the provisions of SB 1070 are therefore preempted by federal law.

SB 1070 is not a freestanding statute, but adds some new sections to the Arizona Revised Statutes (ARS) and amends some existing sections.  SB 1070 also contains a severability clause, providing that, if part of the act is held invalid, that won't affect other parts that can be given effect without the invalid part.  Therefore, the Court will consider SB 1070 part by part.


I.B.  OUTCOME OF THE MOTION FOR INJUNCTION


I.B.1.  The court WILL enjoin parts of SB 1070.

The Court finds that the United States IS likely to succeed on the merits in showing that federal law preempts parts of SB 1070.  The Court also finds that the United States is likely to suffer irreparable harm if the Court does not preliminarily enjoin enforcement of those parts, and that the balance of equities tips in the United States' favor considering the public interest. 
The Court therefore issues a preliminary injunction enjoining the enforcement of the following sections of SB 1070:
   2 (in part)
       ARS 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
   3
       ARS 13-1509:  creating a crime for the failure to apply for or carry alien registration papers
   5 (in part)
       ARS 13-2928(C):  creating a crime for an unauthorized alien to solicit, apply for, or perform work
   6
       ARS 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


I.B.2.  The court will NOT enjoin other parts of SB 1070.

The US has not made any argument to preliminarily enjoin, so THE COURT DOES NOT ENJOIN, the following sections of SB 1070:
   1
       no ARS citation:  providing legislative intent
   2 (in part)
       ARS 11-1051(A):  prohibiting Arizona officials, agencies, and political subdivisions from limiting enforcement of federal immigration laws
       ARS 11-1051(C)-(F):  requiring state officials to work with federal officials with regard to unlawfully present aliens
       ARS 11-1051(G)-(L):  allowing legal residents to sue any state official, agency, or political subdivision for adopting a policy of restricting enforcement of federal immigration laws to less than the full extent permitted by federal law
   4
       ARS 13-2319:  amending the crime of human smuggling
   5 (in part)
       ARS 13-2928(A)-(B):  creating a crime for stopping a motor vehicle to pick up day laborers and for day laborers to get in a motor vehicle if it impedes the normal movement of traffic
   7
       ARS 23-212:  amending the crime of knowing employment of unauthorized aliens
   8
       ARS 23-212.01:  amending the crime of intentional employment of unauthorized aliens
   9
       ARS 23-214:  amending the requirements for checking employment eligibility
   11
       ARS 41-1724:  creating the gang and immigration intelligence team enforcement mission fund
   12 & 13
       no ARS citation:  administering SB 1070

The Court finds that the United States is not likely to succeed on the merits in showing that the following provisions of SB 1070 are preempted by federal law, so THE COURT DOES NOT ENJOIN enforcement of the following sections:
   5 (in part)
       ARS 13-2929:  creating a separate crime for a person in violation of a criminal offense to transport or harbor an unlawfully present alien or encourage or induce an unlawfully present alien to come to or live in Arizona
   10
       ARS 28-3511:  amending the provisions for the removal or impoundment of a vehicle to permit impoundment of vehicles used in the transporting or harboring of unlawfully present aliens


II.  BACKGROUND


II.A.  Overview of Federal Immigration Law

Congress has created and refined a complex and detailed statutory framework regulating immigration.  The federal immigration scheme is largely enacted through the Immigration and Nationality Act ("INA"), which empowers various federal agencies (including the Department of Justice ("DOJ"), Department of Homeland Security ("DHS"), and Department of State ("DOS")) to administer and enforce the immigration laws.

-- COMMENT:  The decision does not distinguish between administering and enforcing.  After its opening reference to "rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns," the decision does not address the federal government's failure to actually enforce the system it administers.

Among its many provisions, the INA sets forth how a foreign national may be admitted to and remain in the United States.  The INA also contains an alien registration system intended to monitor the entry and movement of aliens in the United States.  An alien may be placed in removal proceedings for various actions, such as entering the United States without inspection, presenting fraudulent documents at a port of entry, violating the conditions of admission, etc.  Violations of immigration laws may also subject an alien to civil and criminal sanctions.

Unlawful presence in the United States is not a federal crime, although it may make the alien removable.  However, unlawful presence is an element of the federal crime of reentry after deportation, and unlawful entry is a federal crime.  It is a federal crime to knowingly bring an unauthorized alien into the country, as well as to harbor such a person or to facilitate unlawful immigration.

The federal Immigration Reform and Control Act ("IRCA") of 1986 created sanctions to be implemented against employers who knowingly employ aliens who are not authorized to work.  Federal law contains no criminal sanction for working without authorization, although document fraud is a civil violation under IRCA.

The federal Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") of 1996 created various employment eligibility verification programs.

Federal law envisions certain areas of cooperation in immigration enforcement among the federal government and state and local governments.  DHS has also established the Law Enforcement Support Center ("LESC"), which is administered by Immigration and Customs Enforcement ("ICE") and serves as a national enforcement information center for state and local officials.


II.B.  The Sections of SB 1070


II.B.1.  Section 1 states that "the intent of [SB 1070] is to make attrition through enforcement the public policy of all state and local government agencies in Arizona" and that "[t]he provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States."  Section 1 also says "there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona."


II.B.2.  Section 2 adds ARS 11-1051.  Subsection 2(A) prohibits Arizona officials, agencies and political subdivisions from limiting or restricting the enforcement of federal immigration laws.  2(B) requires officers to make a reasonable attempt, when practicable, to determine an individual's immigration status during any lawful stop, detention, or arrest where reasonable suspicion exists that the person is unlawfully present in the United States.  2(B) also requires that all persons who are arrested have their immigration status verified prior to release.  Subsections 2(B) and 2(E) provide the process for verifying immigration status and list documents that create a presumption of lawful presence.  2(B) does not require or authorize mandatory stops for the purpose of immigration status verification.  2(C) requires notification of ICE or Customs and Border Protection whenever an unlawfully present alien is discharged or assessed a monetary obligation.  2(D) and (F) permit law enforcement to securely transport unlawfully present aliens and send, receive, and exchange information related to immigration status.  2(H) permits legal residents of Arizona to bring actions in state court "to challenge any official or agency of [Arizona] that adopts or implements a policy or practice that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law."  2(I) and (J) address the civil penalties arising from such civil suits, and 2(K) provides that law enforcement officers are indemnified against reasonable costs and expenses incurred by the officer in connection with any suit initiated under this Section unless the officer is found to have acted in bad faith.

-- COMMENT, the decision says ARS 11-1051 has 12 parts, but only talks about parts A through K.


II.B.3.  Section 3 adds ARS 13-1509, which provides that "a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of" two federal statutes that require aliens to carry documentation of registration, and penalize the willful failure to register.  Violation of Section 3 is a class 1 misdemeanor, with a maximum fine of $100 and a maximum of 20 days in jail for a first violation and up to 30 days in jail for any subsequent violation.  Section 3 limits a violator's eligibility for a suspended sentence, probation, pardon, and commutation of a sentence and requires violators to pay jail costs.  In enforcing Section 3, immigration status may be determined by a law enforcement officer authorized by the federal government or pursuant to 8 USC 1373(c).  Law enforcement officers are not permitted to consider race, color, or national origin in enforcing Section 3.  Finally, Section 3 does not apply to "a person who maintains authorization from the federal government to remain in the United States."


II.B.4.  Section 4 revised ARS 13-2319 by adding a provision that permits officers enforcing Arizona's human smuggling statute to stop any person who is operating a motor vehicle if the officer has reasonable suspicion to believe that the person is in violation of any civil traffic law.  Section 4 does not make any other changes to Arizona's human smuggling statute.


II.B.5.  Section 5 adds two provisions to the Arizona Criminal Code.

In ARS 13-2928, Section (A) provides that it is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway, or highway and is impeding traffic to attempt to hire a person for work at another location.  Section (B) makes it unlawful for a person to enter a motor vehicle in order to be hired if the vehicle is stopped on a street, roadway, or highway and is impeding traffic.  Section (C) makes it unlawful "for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state."  Violation is a class 1 misdemeanor.

ARS 13-2929 makes it unlawful for a person who is in violation of a criminal offense to:  (1) transport or move or attempt to transport or move an alien in Arizona in furtherance of the alien's unlawful presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or 1 shield an alien from detection in Arizona; and (3) encourage or induce an alien to come to or live in Arizona.  In order to violate ARS 13-2929(A), a person must know or recklessly disregard the fact that the alien is unlawfully present in the United States.  Violation is a class 1 misdemeanor.


II.B.6.  Section 6 amends ARS 13-3883 to let an officer arrest a person without a warrant if the officer has probable cause to believe that "the person to be arrested has committed any public offense that makes the person removable from the United States."


II.B.7.  Sections 7-13
    Sections 7, 8, and 9 amend Arizona's law imposing sanctions on employers who hire unlawfully present aliens.
    Section 10 amends ARS 28-3511 to allow the immobilization or impoundment of vehicles used in the transporting and concealing of unlawfully present aliens where the driver of the vehicle knew or recklessly disregarded the fact that the alien was unlawfully present.
    Section 11 creates the "gang and immigration intelligence team enforcement mission fund" for civil penalties paid pursuant to Subsection 2(I).
    Section 12 provides for the severance of any unconstitutional provisions.
    Section 13 provides a short title for the enactment.


II.C.  Procedural Posture

The US argues principally that the power to regulate immigration is vested exclusively in the federal government, so that the provisions of SB 1070 are preempted by federal law.  The Court held a Hearing on Plaintiff's Motion on July 22, 2010 ("the Hearing").  SB 1070 has an effective date of July 29.  The judge ruled on July 28.


III.  LEGAL STANDARDS AND ANALYSIS


III.A.  General Legal Standards

"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest."

The US primarily asserts that the provisions of SB 1070 are preempted by federal law.  The Supremacy Clause of the United States Constitution (Art. VI, cl. 2) makes federal law "the supreme law of the land."  The Supreme Court has consistently ruled that the federal government has broad and exclusive authority to regulate immigration, supported by both enumerated and implied constitutional powers.

However, the Supreme Court has also held that not every state enactment "which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional power, whether latent or exercised."

Federal preemption can be either express or implied.  There are two types of implied preemption.  "Field preemption" occurs where "the depth and breadth of a congressional scheme [occupy] the legislative field."  Conflict preemption occurs when "compliance with both federal and state regulations is a physical impossibility or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."  Actual, not mere hypothetical or potential, conflict must exist for conflict preemption to apply.


III.B.  Likelihood of US Success on the Merits

The US challenges SB 1070 on its face, before it takes effect on July 29, 2010.  "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid."  "[S]ome Members of the [US Supreme] Court have criticized [that] formulation, [but] all agree that a facial challenge must fail where a statute has a 'plainly legitimate sweep.'"  In deciding a facial challenge, courts "must be careful not to go beyond the statute's facial requirements and speculate about 'hypothetical' or 'imaginary' cases."


III.B.1.  Preemption of Overall Statutory Scheme

The US specifically challenges only select provisions of SB 1070, but also argues that the overall statutory scheme of SB 1070 is preempted by federal law because it attempts to set immigration policy at the state level and interferes and conflicts with federal immigration law, foreign relations, and foreign policy.  Section 1 of SB 1070 declares a unified, state-wide public policy, providing:
   The legislature declares that the intent of this act is to
   make attrition through enforcement the public policy of all
   state and local government agencies in Arizona.  The
   provisions of this act are intended to work together to
   discourage and deter the unlawful entry and presence of
   aliens and economic activity by persons unlawfully present
   in the United States.
The US asserts that Section 1 animates and "infuses" the operative sections of the law.

"[W]hen the constitutionality of a state statute is challenged, principles of state law guide the severability analysis and [courts] should strike down only those provisions which are inseparable from the invalid provisions."  "A court should not declare an entire statute unconstitutional if the constitutional portions can be severed from those which are unconstitutional."

Under Arizona law,
   where the valid parts of a statute are effective and
   enforceable standing alone and independent of those portions
   declared unconstitutional, the court will not disturb the
   valid law if the valid and invalid portions are not so
   intimately connected as to raise the presumption the
   legislature would not have enacted one without the other,
   and the invalid portion was not the inducement of the act.
In determining whether potentially unconstitutional provisions of SB 1070 may be severed from the remainder of the enactment, the primary concern is legislative intent.  If a statute has a severability provision, Arizona courts generally try to give effect to it.

Section 12(A) of SB 1070 provides for severability, stating that if any provision "is held invalid, the invalidity does not affect other provisions ... that can be given effect without the invalid provision."  As a result, where the provisions of SB 1070 are "effective and enforceable standing alone and independent" of any unconstitutional provisions and the valid portions are not so "intimately connected" to any invalid provision as to raise the presumption that the Arizona Legislature would not have enacted the valid provisions without the invalid provisions, SB 1070's provisions are severable.

Section 1 has no operative function, but its statement of Legislative intent provides context for the functional enactments of SB 1070.


III.B.2.  Section 2(B)

Section 2(B) of SB 1070, ARS 11-1051(B), says:
   For any lawful stop, detention or arrest made by [an
   Arizona] law enforcement official or ... law enforcement
   agency ... in the enforcement of any other law or ordinance
   of a county, city or town of this state where reasonable
   suspicion exists that the person is an alien and is
   unlawfully present in the United States, a reasonable
   attempt shall be made, when practicable, to determine the
   immigration status of the person, except if the
   determination may hinder or obstruct an investigation.  Any
   person who is arrested shall have the person's immigration
   status determined before the person is released.
Section 2(B) also says that if an officer is presented with one of the following forms of identification, the officer is to presume that the person is not an unauthorized alien:  (1) a valid Arizona driver license or identification license; (2) a valid tribal enrollment card or other tribal identification; or (3) a valid United States federal, state, or local form of identification, provided that the issuing entity requires proof of citizenship before issuance.  The United States argues that this section is preempted because it will result in the harassment of lawfully present aliens, burden federal resources, and impede federal enforcement and policy priorities.


III.B.2.a.  Mandatory Immigration Status Determination Upon Arrest

The Court first addresses the second sentence of Section 2(B):  "Any person who is arrested shall have the person's immigration status determined before the person is released."  Arizona argues that the proper interpretation of this sentence is "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 before the person is released."  Arizona acknowledges that this sentence of Section 2(B) "might well have been more artfully worded."

-- COMMENT:  The judge is being tactful.  When an attorney has to argue that a statute doesn't mean what it says, the statute is written sloppily.  SB 1070 is, in fact, sloppy work.  It was so sloppy that it had to be rewritten a week after it was passed.  State Senator Pearce is being "credited" with "crafting" this legislation.  "Crafting law," you see, is something that ordinary citizens can't possibly understand; we are mere writers, not "crafters."  Pearce's original work was lousy.  If Pearce hopes to ride SB 1070 to political glory, he's trying to piggyback on people who are more competent.  I'm not talking about his cause -- I'm saying he did incompetent work to advance his cause.

Arizona also argues, "[T]he Arizona Legislature could not have intended to compel Arizona's law enforcement officers to determine and verify the immigration status of every single person arrested -- even for United States citizens and when there is absolutely no reason to believe the person is unlawfully present in the country."

The Court cannot interpret this provision as Arizona suggests.  Before SB 1070 was amended, the first sentence of Section 2(B) began, "For any lawful contact" rather than "For any lawful stop, detention or arrest."  The second sentence has not been amended.  It is not a logical to argue that the state legislature originally intended the first two sentences of Section 2(B) to be read as dependent on one another; they were independent.  Therefore, it does not follow that by changing "contact" to "stop, detention or arrest" in the first sentence, the Arizona Legislature intended to alter the meaning of the second sentence.  If that had been the Legislature's intent, it could easily have modified the second sentence accordingly.

Therefore, the Court reads the second sentence of Section 2(B) independently from the first sentence.  The Court also concludes that the list of forms of identification that could provide a presumption that a person is not an unlawfully present alien applies only to the first sentence of Section 2(B) because the second sentence makes no mention of unlawful presence, but states plainly that "[a]ny person who is arrested" must have his or her immigration status determined before release.  A legal permanent resident might have a valid Arizona driver's license, but an inquiry would still need to be made to satisfy the requirement that "immigration status" be determined prior to release.

The US asserts that mandatory determination of immigration status for all arrestees "conflicts with federal law because it necessarily imposes substantial burdens on lawful immigrants in a way that frustrates the concern of Congress for nationally-uniform rules governing the treatment of aliens throughout the country -- rules designed to ensure 'our traditional policy of not treating aliens as a thing apart.'"  Finding a state law related to alien registration to be preempted, the Supreme Court in the Hines case observed that Congress "manifested a purpose to [regulate immigration] in such a way as to protect the personal liberties of law-abiding aliens through one uniform national ...  system[] and to leave them free from the possibility of inquisitorial practices and police surveillance."

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.  Given the large number of people who are technically "arrested" but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification.  During fiscal 2009, Tucson used Arizona's cite-and-release procedure to "arrest" and immediately release 36,821 people.  Under Section 2(B) of SB 1070, all arrestees will be required to prove their immigration status to the satisfaction of state authorities, thus increasing the intrusion of police presence into the lives of legally-present aliens (and even United States citizens), who will necessarily be swept up by this requirement.  The Court is also cognizant of the potentially serious Fourth Amendment problems with the inevitable increase in length of detention while immigration status is determined.

The US argues that the influx of requests for immigration status determination directed to the federal government or federally-qualified officials would "impermissibly shift the allocation of federal resources away from federal priorities."  State laws have been found to be preempted where they imposed a burden on a federal agency's resources that impeded the agency's function.  Under federal law, DHS is required to "respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status ... for any purpose authorized by law, by providing the requested verification or status information."  DHS has, in its discretion, set up LESC, which is administered by ICE and "serves as a national enforcement operations center that promptly provides immigration status and identity information to local, state, and federal law enforcement agencies regarding aliens suspected of, arrested for, or convicted of criminal activity."  LESC resources are currently dedicated in part to national security objectives such as requests for immigration status determination from the United States Secret Service, the FBI, and employment-related requests at "national security related locations that could be vulnerable to sabotage, attack, or exploitation."  Thus, an increase in the number of requests for determinations of immigration status, as is likely to result from SB 1070, will divert resources from the federal government's other responsibilities and priorities.  For these reasons, the US has demonstrated that it is likely to succeed on its claim that the mandatory immigration verification upon arrest requirement contained in Section 2(B) of SB 1070 is preempted by federal law.

The problems associated with burdening federal resources are even more acute when considered in light of other states' laws similar to this provision.


III.B.2.b.  Immigration Status Determination During Lawful Stops, Detentions, or Arrests

Next, the Court turns to the first sentence of ARS 11-1051(B):
   For any lawful stop, detention or arrest made by [an
   Arizona] law enforcement official or ...  law enforcement
   agency ...  in the enforcement of any other law or ordinance
   of a county, city or town of this state where reasonable
   suspicion exists that the person is an alien and is
   unlawfully present in the United States, a reasonable
   attempt shall be made, when practicable, to determine the
   immigration status of the person, except if the
   determination may hinder or obstruct an investigation.
The US makes essentially the same arguments about this requirement:  first, that it imposes a burden on lawfully-present aliens not permitted by the Hines case; second, that this requirement impermissibly burdens and redirects federal resources away from federally-established priorities.  However, the US also makes several arguments with respect to the burden on lawfully-present aliens that are specific to or slightly different in the context of the first sentence of Section 2(B).

First, the US argues that this provision "necessarily places lawfully present aliens (and even US citizens) in continual jeopardy of having to demonstrate their lawful status to non-federal officials."

The US also argues that there are numerous categories of lawfully-present aliens "who will not have readily available documentation to demonstrate that fact," including foreign visitors under the Visa Waiver Program (which permits visitors from certain countries to enter the United States without a visa, so long as various requirements are met), individuals who have applied for asylum but not yet received an adjudication, people with temporary protected status, U and T non-immigrant visa applicants, or people who have self-petitioned for relief under the Violence Against Women Act.

Also, the US points out that US citizens are not required to carry identification, and some citizens might not have easy access to a form of identification that would satisfy the requirement of Section 2(B) (and upon a check with LESC or a federally-authorized state official, the status of a US citizen might not be easily confirmable, as many people born in the US likely do not have an entry in a DHS database.)

The US adds several exacerbating factors.  First, the US suggests that the impact on lawfully-present aliens is enhanced because this requirement applies to stops for even very minor, non-criminal violations of state law, including jaywalking, failing to have a dog on a leash, or riding a bicycle on the sidewalk.  Also, the US argues that the impact will be increased because other provisions in SB 1070 put pressure on law enforcement agencies and officials to enforce the immigration laws vigorously.  These provisions include Sections 2(A) and 2(H), which, respectively, prohibit agencies from restricting the enforcement of immigration laws and create a private right of action for legal residents to sue agencies if they believe the laws are not being enforced aggressively enough.

The Hines case cautions against imposing burdens on lawfully-present aliens such as those described above.  Legal residents will certainly be swept up by this requirement, particularly when the impacts of the provisions pressuring law enforcement agencies to enforce immigration laws are considered.  Certain categories of people with transitional status and foreign visitors from countries that are part of the Visa Waiver Program will not have readily available documentation of their authorization to remain in the United States, thus potentially subjecting them to arrest or detention, in addition to the burden of "the possibility of inquisitorial practices and police surveillance."  In the Hines case, the Supreme Court emphasized the important federal responsibility to maintain international relationships, for the protection of American citizens abroad as well as to ensure uniform national foreign policy.

The Court finds that this requirement imposes an unacceptable burden on lawfully-present aliens.

Federal resources will be taxed and diverted from federal enforcement priorities as a result of the increase in requests for immigration status determination that will flow from Arizona if law enforcement officials are required to verify immigration status as SB 1070 requires.

-- COMMENT:  It's a pity that the Court didn't compare the relative burden on the federal government, the surely-light burden of generating papers during other processing, to the effect on Arizona of the inability to check for papers showing legal entry.

Many law enforcement officials already have the discretion to verify immigration status if they have reasonable suspicion, in the absence of SB 1070; Section 2 of SB 1070 removes that discretion by making immigration status determinations mandatory where practicable.

-- COMMENT:  This sounds like a hint by the judge to rewrite the law to get rid of the mandatory determination, but allow discretion.

In combination with the impermissible burden this provision will place on lawfully-present aliens, the burden on federal resources and priorities also leads to an inference of preemption.  So, for the purposes of preliminary injunction analysis, the Court concludes that the United States has demonstrated a likelihood of success on its challenge to the first sentence of Section 2(B).  Section 2(B) in its entirety is likely preempted by federal law.


III.B.3.  Section 3

Section 3, ARS 13-1509, states that "a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 [USC] 1304(e) or 1306(a)."  8 USC 1306(a) makes it a misdemeanor, subject to a maximum fine of $1000 and a maximum of six months imprisonment, to willfully fail or refuse to apply for registration when such application is required.  8 USC 1304(e) requires an alien to carry a certificate of alien registration or alien registration receipt and makes a failure to comply with these requirements a misdemeanor subject to a maximum fine of $100 and imprisonment for up to 30 days.

The penalties for violation of Section 3, a class 1 misdemeanor, are a maximum fine of $100 and a maximum of 20 days in jail for a first violation and up to 30 days in jail for any subsequent violation.  Section 3 also limits violators' eligibility for suspension of sentence, probation, pardon, and commutation of a sentence and requires violators to pay jail costs.  Section 3 does not apply to "a person who maintains authorization from the federal government to remain in the United States."  Essentially, Section 3 makes it a state crime to violate federal registration laws and provides for state prosecutions and penalties for violations of the federal registration law.  The US argues that Section 3 is preempted because it interferes with comprehensive federal alien registration law, seeks to criminalize unlawful presence, and will result in the harassment of aliens.  Arizona asserts that Section 3 neither conflicts with federal law nor regulates in a federally occupied field.

The Hines case said that "the power to restrict, limit, regulate, and register aliens as a distinct group is not an equal and continuously existing concurrent power of state and nation[;] ... whatever power a state may have is subordinate to supreme national law."  In Hines, the Supreme Court found that
   where the federal government, in the exercise of its
   superior authority in this field, has enacted a complete
   scheme of regulation and has therein provided a standard for
   the registration of aliens, states cannot, inconsistently
   with the purpose of Congress, conflict or interfere with,
   curtail or complement, the federal law, or enforce
   additional or auxiliary regulations. 
The Hines case also stated that a state statute is preempted where it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."  The Supreme Court determined that the purpose of the Federal Alien Registration Act was to "make a harmonious whole" and that the Act "provided a standard for alien registration in a single integrated and all-embracing system."  As a result, the state registration scheme at issue could not be enforced.

While the Supreme Court rejected the possibility that the INA is so comprehensive that it leaves no room for state action that impacts aliens, the Supreme Court has also evaluated the impact of the comprehensive federal alien registration scheme and determined that the complete scheme of registration precludes states from conflicting with or complementing the federal law.

Section 3 attempts to supplement or complement the uniform, national registration scheme.  Section 3 does not create additional registration requirements, but it does aim to create state penalties and lead to state prosecutions for violation of the federal law.  Although the alien registration requirements remain uniform, Section 3 alters the penalties established by Congress under the federal registration scheme.  Section 3 stands as an obstacle to the uniform, federal registration scheme and is therefore an impermissible attempt by Arizona to regulate alien registration.  As a result, the Court finds that the United States is likely to succeed on its claim that Section is preempted by federal law.

-- COMMENT:  The federal government doesn't really believe that uniformity in immigration laws is necessary.  We know the feds don't believe this, because the feds allow the existence of "sanctuary cities," such as San Francisco, which promise illegal aliens that immigration laws won't be enforced.  Apparently the feds require uniformity when Arizona wants to combat illegals, but the feds don't require uniformity if a patchwork of policies works to the benefit of illegals.  The judge did not address this argument, so perhaps it was not made.

-- CITIZEN COMMENT:  "... I am particularly upset by the Judges ruling that legal and/or illegal immigrants do not have to have their paperwork in their possession.  Why then must I have a drivers license?  Proof of insurance?  Etc.  Try visiting Mexico without the proper paper documentation in your possession and see where you end up.  Also in Mexico it is not just the Federales you have to worry about.  Law enforcement and quasi law enforcement at all levels will stop you in a heartbeat.  You had better have your documentation in your possession.  Been there, done that to include being stopped outside Caborca by teenagers with AK47's and no uniforms.  Talk about racial profiling!"


III.B.4:  Section 4

Section 4 amends Arizona's human smuggling statute, ARS 13-2319.  Section 4 adds, "Notwithstanding any other law, in the enforcement of this section a peace officer may lawfully stop any person who is operating a motor vehicle if the officer has reasonable suspicion to believe the person is in violation of any civil traffic law."  The US requests an injunction prohibiting the enforcement of Section 4, but does not seek an injunction as to ARS 13-2319.

Section 4 makes a minor change to Arizona's preexisting human smuggling statute, which is not specifically challenged by the United States.  Nothing about the section standing alone warrants an injunction.  As a result, the Court finds that the US is not likely to succeed on a claim that Section 4 is preempted by federal law.


III.B.5:  ARS 13-2928

Two provisions of Section 5, ARS 13-2928(A) and (B), prohibit the act of hiring and being hired by the occupant of a motor vehicle.  The Court finds that the June 9, 2010, decision of the Ninth Circuit Court of Appeals in a case contesting a virtually identical local ordinance in Redondo Beach, California forecloses a challenge to ARS 13-2928(A) and (B) on First Amendment grounds.

Section 5 creates ARS Sec. 13-2928(C), which says "it is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state."  This violation is a class 1 misdemeanor.  The US asserts that this provision "is preempted by Congress's comprehensive scheme, set forth in [IRCA] for regulating the employment of aliens."  The US argues that "IRCA reflects Congress's deliberate choice not to criminally penalize unlawfully present aliens for performing work, much less for attempting to perform it."  Arizona responds that "Congress could have, but chose not to, expressly preempt state and local laws that impose civil or criminal sanctions upon employees," and that in an area of traditional state sovereignty such as employment, "[p]reemption cannot be lightly inferred."  "States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State."

Interpreting the relevant cases and considering a state law sanctioning employers who hire unauthorized workers, the Ninth Circuit Court of Appeals held that, "because the power to regulate the employment of unauthorized aliens remains within the states' historic police powers, an assumption of non-preemption appli[ed]."  "[I]n a field which the States have traditionally occupied ... we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress".

However, "[w]here a comprehensive federal scheme intentionally leaves a portion of the regulated field without controls, then the pre-emptive inference can be drawn, not from federal inaction alone but from inaction joined with action."  The Supreme Court has explained that with some "extant action" by Congress, there can arise "an inference of pre-emption in an unregulated segment of an otherwise regulated field."

IRCA provides penalties for employers who knowingly hire or continue to employ an alien without work authorization.  IRCA prohibits employers from recruiting or referring for a fee unauthorized workers.  IRCA makes it unlawful to use contractors or subcontractors to hire unauthorized alien workers.  Under IRCA, employers must comply with an "employment verification system" set up by the statute.  IRCA instituted a compliance scheme and a series of escalating sanctions for violations, entailing increasing monetary fines for each subsequent violation and the possibility of injunctive sanctions.

While it is readily apparent that Congress's central focus in IRCA was employer sanctions, there are also targeted sanctions directed at employees.  IRCA also requires that an individual seeking employment "attest, under penalty of perjury [being] a citizen or national of the United States, an alien lawfully admitted for permanent residence, or an alien who is authorized ...  to be hired, recruited, or referred for such employment."  This attestation is to be made on a form "designated or established by the Attorney General," and IRCA states that the form "and any information contained in or appended to such form[] may not be used for purposes other than for enforcement of this chapter and [various] sections of Title 18" of the federal criminal code.  The referenced provisions of Title 18 make it a federal crime to, in any matter within the jurisdiction of the federal government:
   Sec. 1001(a):  (1) falsify, conceal, or cover up any material fact; (2) knowingly make or use a materially false, fictitious, or fraudulent statement; or (3) make or use any false writing or document.
   Sec. 1028(a):  knowingly make, use, or transfer a false or stolen identification document or identification document belonging to another person or any implement or
feature for use in creating a false identification document.
   Sec. 1546:  (a) forge or falsify an immigration document; or (b) use a false identification document, a document not properly issued to the user, or a false attestation.
   Sec. 1621:  commit perjury by knowingly making a false statement after taking an oath to tell the truth during a proceeding or on any document signed under penalty of perjury.
Accordingly, the attestation forms described in 8 USC Sec. 1324a(b)(2) may only be used for these limited purposes.

The Court is convinced that Congress has comprehensively regulated in the field of employment of unauthorized aliens.  These "extant actions," in combination with an absence of regulation for the particular violation of working without authorization, lead to the conclusion that Congress intended not to penalize this action, other than the specific sanctions outlined above.  Thus, the Court finds that Plaintiff is likely to succeed on its claim that Arizona's new crime for working without authorization conflicts with a comprehensive federal scheme and is preempted.


III.B.6.  Section 5:  ARS 13-2929

Section 5 also creates ARS 13-2929, making it illegal for a person who is in violation of a criminal offense to:  (1) transport or move or attempt to transport or move an alien in Arizona in furtherance of the alien's unlawful presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or shield an alien from detection in Arizona; and (3) encourage or induce an alien to come to or live in Arizona.  In order to violate ARS 13-2929(A), a person must also know or recklessly disregard the fact that the alien is unlawfully present in the United States.  The US asserts that this provision is preempted as an impermissible regulation of immigration, and violates the dormant Commerce Clause. 

III.B.6.a.  Regulation of Immigration

The "[p]ower to regulate immigration is unquestionably exclusively a federal power."  The regulation of immigration is "essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain."  "[T]he fact that aliens are the subject of a state statute does not render it a regulation of immigration."  The US argues that "to the extent Section 5 is not a restriction on interstate movement, it is necessarily a restriction on unlawful entry into the United States."

ARS 13-2929 does not attempt to regulate who should or should not be admitted into the United States, and it does not regulate the conditions under which legal entrants may remain in the United States.  Therefore, the Court concludes that the US is not likely to succeed on its claim that ARS 13-2929 is an impermissible regulation of immigration.


III.B.6.b.  The Dormant Commerce Clause

The Commerce Clause (US Const. art. I, sec. 8, cl. 1, 3) provides Congress with the power to "regulate Commerce ... among the several States."  The Supreme Court has interpreted the Commerce Clause "to have a 'negative' aspect that denies the States the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce."  This is often referred to as the "dormant Commerce Clause."  "The dormant Commerce Clause is implicated if state laws regulate an activity that 'has a substantial effect' on interstate commerce such that Congress could regulate the activity.'"

If a state statute implicates the dormant Commerce Clause, the Court must then determine "whether [the statute] discriminates on its face against interstate commerce."  "In this context, discrimination simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter."  Nondiscriminatory statutes directed at legitimate local concerns do not violate the dormant Commerce Clause "unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits."

The US argues that ARS 13-2929 "offends the [d]ormant Commerce Clause by restricting the interstate movement of aliens."  ARS 13-2929 does not restrict or limit which aliens can enter Arizona.  While the regulation of immigration does have an impact on interstate commerce, the US has not provided a satisfactory explanation of how ARS 13-2929, which creates parallel state statutory provisions for conduct already prohibited by federal law, has a substantial effect on interstate commerce.

The US also argues that the dormant Commerce Clause "forbids certain state regulations attempting to discourage or otherwise restrict the movement of people between states."  However, the US fails to cite any authority supporting the proposition that unlawfully present aliens must be permitted to travel from state to state.  The Supreme Court has struck down a California statute prohibiting the transportation of indigent people into California; but unlike that California statute, ARS 13-2929 prohibits the transportation of people who are unlawfully present in the United States.  Moreover, ARS Sec. 13-2929 does not attempt to prohibit entry into Arizona, but rather criminalizes specific conduct already prohibited by federal law.

Also, ARS 13-2929 does not discriminate between in-state and out-of-state economic interests.  ARS 13-2929 governs conduct occurring in Arizona and does not differentiate between in-state and out-of-state economic interests or burden out-of-state interests in a way that benefits in-state interests.  Further, ARS 13-2929 is directed at legitimate local concerns related to public safety.  Therefore, ARS 13-2929 does not violate the dormant Commerce Clause "unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits."  Here, any incidental burden on interstate commerce is minimal in comparison with the putative local benefits.  The Court finds that the United States is not likely to succeed on its claim that Section 5's addition of ARS 13-2929 violates the dormant Commerce Clause or is an impermissible attempt to regulate immigration.

The US asserts that Section 10 of SB 1070 "is preempted insofar as it is based on the state law violations identified in Sections 4 and 5, which are preempted ...."  As discussed above, the Court finds that Sections and 5 are not likely to be preempted by federal law.  Therefore, the United States is also not likely to succeed on its claim that Section 10 is preempted.


III.B.7.  Section 6:  Amendment to ARS 13-3883(A)

In Section 6, the Arizona Legislature revised ARS 13-3883 to provide that an officer may arrest a person without a warrant if the officer has probable cause to believe that "the person to be arrested has committed any public offense that makes the person removable from the United States."  In Arizona, a "public offense" is
   conduct for which a sentence to a term of imprisonment or of
   a fine is provided by any law of the state in which it
   occurred or by any law, regulation or ordinance of a
   political subdivision of that state and, if the act occurred
   in a state other than this state, it would be so punishable
   under the laws, regulations or ordinances of this state or
   of a political subdivision of this state if the act had
   occurred in this state.
Because ARS 13-3883 already provides for the warrantless arrest of a person who commits a felony, misdemeanor, petty offense, or one of certain criminal violations in connection with a traffic accident, the effect of Section 6 on warrantless arrest authority is not entirely clear.  Indeed, the Arizona officer training materials state that the revision to ARS Sec. 13-3883 "does not appear to change Arizona law."  Both the US in its Motion, and Arizona at the Hearing, suggested that the revision provides for the warrantless arrest of a person where there is probable cause to believe the person committed a crime in another state that would be considered a crime if it had been committed in Arizona and that would subject the person to removal from the United States.  What is clear is that the statutory revision targets only aliens -- legal and illegal -- because only aliens are removable.

In its brief, Arizona originally asserted that the new provision in ARS 13-3883 was "based upon a memorandum the DOJ's Office of Legal Counsel prepared in which it concluded that federal law does not 'preclude[] state police from arresting aliens on the basis of civil deportability.'"  Although neither party asserted it at the Hearing, the Arizona Legislature's intent may have been to provide for the warrantless arrest of an alien who was previously convicted of a crime in Arizona but never referred to DHS for potential removal proceedings.  This alternate interpretation of the revision to ARS 13-3883 would be in keeping with a goal of conferring on state officers the authority to arrest aliens on the basis of civil deportability.

Under the interpretation suggested by both parties that the revision to ARS 13-3883 is directed at the arrest of aliens who committed a crime in another state, the statute first requires an officer to determine whether an alien's out-of-state crime would have been a crime if it had been committed in Arizona, a determination that requires knowledge of out-of-state statutes and their relationship with Arizona's statutes.  Under any interpretation, revised ARS 13-3883 requires an officer to determine whether an alien's public offense makes the alien removable from the United States, a task of considerable complexity that falls under the exclusive authority of the federal government.  Justice Alito has commented that
   providing advice on whether a conviction for a particular
   offense will make an alien removable is often quite complex.
   "Most crimes affecting immigration status are not
   specifically mentioned by the [Immigration and Nationality
   Act (INA)], but instead fall under a broad category of
   crimes such as crimes involving moral turpitude or
   aggravated felonies."  As has been widely acknowledged,
   determining whether a particular crime is an "aggravated
   felony" or a "crime involving moral turpitude [(CIMT)]" is
   not an easy task.
Within the complicated scheme of determining removability, some federal officials are, under certain circumstances, authorized to change the immigration consequences of the commission of a public offense and cancel or suspend the removal of an alien.  Ultimately, immigration court judges and federal appeals court judges determine whether an alien's offense makes an alien removable.

In its Motion, the US provided evidence that Arizona police officers have no familiarity with assessing whether a public offense would make an alien removable from the United States.  Arizona responded that, under new ARS 11-1051, Arizona officers can contact DHS to determine the immigration status of aliens.  But the revision to ARS 13-3883 does not state that an officer must contact DHS to assess removability, the revision simply extends the authority for an officer to make a warrantless arrest.

Even if an officer does contact LESC for the immigration status of an alien, Arizona did not provide any evidence that LESC will have any information regarding whether a particular public offense that an alien may have committed will make the alien removable from the United States.

Considering the substantial complexity in determining whether a particular public offense makes an alien removable from the United States and the fact that this determination is ultimately made by federal judges, there is a substantial likelihood that officers will wrongfully arrest legal resident aliens under new ARS 13-3883(A)(5).  By enforcing this statute, Arizona would impose a "distinct, unusual and extraordinary" burden on legal resident aliens that only the federal government has the authority to impose.  The Court thus finds that the United States is likely to succeed on the merits in showing that new ARS 13-3883(A)(5) is preempted by federal law.


III.C.  Likelihood of Irreparable Harm

The Supreme Court has repeatedly recognized the "basic doctrine of equity jurisprudence that courts of equity should not act ...  when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief."  Thus the US has the burden to establish that, absent a preliminary injunction, there is a likelihood -- not just a possibility -- that it will suffer irreparable harm.

The Ninth Circuit Court of Appeals has stated "that an alleged constitutional infringement will often alone constitute irreparable harm."  Indeed, if an individual or entity faces the imminent threat of enforcement of a preempted state law and the resulting injury may not be remedied by monetary damages, the individual or entity is likely to suffer irreparable harm.

If enforcement of the portions of SB 1070 for which the Court finds a likelihood of preemption is not enjoined, the United States is likely to suffer irreparable harm.  This is so 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.  For this injury, the United States will have no remedy at law.  The Court thus finds a likelihood of irreparable harm to the interests of the United States that warrants preliminary injunctive relief.

-- COMMENT:  This analysis is out of touch with reality.  The federal government already has no ability to enforce its laws -- which are what matter, not the temporary policies of a particular administration.  If the federal government cannot enforce its own laws, then whatever effect Arizona's laws might have, that effect could not be interfering with federal enforcement.  You can't interfere with something that doesn't exist.


III.D.  The Balance of Equities and the Public Interest

The US also has the burden to show that the balance of equities tips in its favor and that a preliminary injunction is in the public interest.  "A preliminary injunction is an extraordinary remedy never awarded as of right."

The Ninth Circuit Court of Appeals has concluded that allowing a state to enforce a state law in violation of the Supremacy Clause is neither equitable nor in the public interest.  If Arizona were to enforce the portions of SB 1070 for which the Court has found a likelihood of preemption, such enforcement would likely burden legal resident aliens and interfere with federal policy.  A preliminary injunction would allow the federal government to continue to pursue federal priorities, which is inherently in the public interest, until a final judgment is reached in this case.

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.

IT IS FURTHER ORDERED denying the United States' Motion for Preliminary Injunction as to the following Sections of SB 1070:  Section 1, Section 2(A) and (C)-(L), Section 4, the portion of Section 5 creating ARS 13-2929, the portion of Section 5 creating ARS 13-2928(A) and (B), and Sections 7-13.

IT IS FURTHER ORDERED preliminarily enjoining the State of Arizona and Governor Brewer from enforcing the following Sections of Senate Bill 1070:  Section 2(B) creating ARS 11-1051(B), Section 3 creating ARS 13-1509, the portion of Section 5 creating ARS 13-2928(C), and Section 6 creating ARS 13-3883(A)(5).

-- CITIZEN COMMENT:  "... I have always viewed SB 1070 as an election year attemp to show that the governor is trying to take charge and do something even it's wrong.  After reading SB 1070, I never saw anything that really had any teeth in it.  As I recall, companies who were caught hiring illegals would have a one year suspension of their license for a first offense and a five year suspension for a second offense.  That's not much of a deterrent.  The state is much harder on drunk drivers.  SB 1070 would have no benefit whatever on the border counties.  With the questionable efficiency of local law enforcement agencies to do their own job, how could anyone expect them to take on the responsibilities of the Feds?  I don't know if you saw the Santa Cruz County sheriff's comment on the 6:00 news, he called the judge an "angel" for her actions.  I wouldn't consider that a glowing endorsement for future reelection."

-- CITIZEN COMMENT:  "... The SV Herald said they cheered in Mexico City when the judge gave her ruling.  Wonder if they cheered in the Middle East as well?  And in China?  Seems we get
illegals from all over these days.  Maybe if everyone put a For Sale sign on their front lawn listing the price in pesos, the federal government might get the message.  I don't know why anyone would want to live here....  [B]ecause of all our jobs were exported to China -- there are few jobs to be had.  America used to be the land of opportunity. Now its motto could be 'Abandon hope, all ye who enter here -- unless you are an illegal entrant, in which case all opens before you....'  I'm starting to think the independent border patrollers have the right idea."

-- COMMENT:  Focusing on Cochise County for a moment:  now both the Executive Branch and the Judicial Branch of the federal government have left the County without protection.  The Legislative Branch left us high and dry the other day, by not providing necessary funding.  The Arizona State government is inept (as shown by Pearce's bumbling of SB 1070) and inattentive (SB 1070 isn't aimed at border protection, which is what Cochise County needs; SB 1070 is aimed at the problems of people in the interior of the state, after the illegals have moved north).  The County Supervisors won't even begin to talk about how to handle the border problem.  "What is to be done?"