The SB 1070 case

Soon after the US Supreme Court's ruling about SB 1070, we discussed it in two of our email updates.


First, on June 25:


The Supreme Court's decision in Arizona's SB1070 case is at

http://www.supremecourt.gov/opinions/11pdf/11-182b5e1.pdf

Reading it for yourself is worth the time.

Here's some key language:
.  "... S.B. 1070 was enacted in 2010 to address pressing issues related to the large number of unlawful aliens in the State.... Section 3 makes failure to comply with federal alien-registration requirements a state misdemeanor; §5(C) makes it a misdemeanor for an unauthorized alien to seek or engage in work in the State; §6 authorizes state and local officers to arrest without a warrant a person [whom] 'the officer has probable cause to believe ... has committed any public offense that makes the person removable from the United States'; and §2(B) requires officers conducting a stop, detention, or arrest to make efforts, in some circumstances, to verify the person's immigration status with the Federal Government....
.  "Held ...
.  "3.  Sections 3, 5(C), and 6 of S.B. 1070 are preempted by federal law....
.     "(a)  Section 3 intrudes on the field of alien registration ....  Because Congress has occupied the field, even complementary state regulation is impermissible....
.     "(b)  Section 5(C)'s criminal penalty stands as an obstacle to the federal regulatory system....  Congress decided it would be inappropriate to impose criminal penalties on unauthorized employees....  a state law to the contrary is an obstacle to the regulatory system Congress chose....
.     "(c)  ... §6 too creates an obstacle to federal law.  As a general rule, it is not a crime for a removable alien to remain in the United States.  The federal scheme instructs when it is appropriate [for trained federal immigration officers] to arrest an alien during the removal process....  Section 6 attempts to provide state officers with even greater arrest authority, which they could exercise with no instruction from the Federal Government.  This is not the system Congress created....
.  "4.  It was improper to enjoin §2(B) before the state courts had an opportunity to construe it and without some showing that §2(B)'s enforcement in fact conflicts with federal immigration law and its objectives....  The mandatory nature of the status checks does not interfere with the federal immigration scheme....  it would be inappropriate to assume [that] §2(B) will be construed in a way that conflicts with federal law.... This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect."

Scalia has a concurrence and dissent which begins on page 30 of that website.  Scalia agrees with the majority about §2(B), but he disagrees about the other sections.  The core of his argument is on pages 37 and 38 of the website:
.  "... the Federal Government must live with the inconvenient fact that it is a Union of independent States, who have their own sovereign powers.  This is not the first time it has found that a nuisance and a bother in the conduct of foreign policy. Four years ago, for example, the Government importuned us to interfere with thoroughly constitutional state judicial procedures in the criminal trial of foreign nationals because the international community, and even an opinion of the International Court of Justice, disapproved them....  We rejected that request, as we should reject the Executive's invocation of foreign-affairs considerations here....
.  "What this case comes down to, then, is whether the Arizona law conflicts with federal immigration law -- whether it excludes those whom federal law would admit, or admits those whom federal law would exclude.  It does not purport to do so. It applies only to aliens who neither possess a privilege to be present under federal law nor have been removed pursuant to the Federal Government's inherent authority...."

Alito has a concurrence and dissent beginning on page 56 of the website.  He agrees with the majority about sections 2(B) and (3), but dissents about 5(C) and 6.

In between Scalia and Alito, Thomas dissents.

Now that this ruling is out, many lawsuits will proceed, for years, against the substance of SB 1070.

CCIPRA notes, as it has in the past, that SB 1070 has very little to do with life along the border.  SB 1070 is concerned mainly with economic activities well north of the border.  It would be nice to see the state and federal governments control the border, instead of ceding control of the border and creating a "border zone" in which the Constitution does not apply and law enforcement is bound to be ineffective.


Second, on June 28, we noticed the possible effect of some of the fed gov's acts immediately after the Sup Ct ruled:

SHOULD THE SUPREME COURT REHEAR THE SB 1070 CASE?

The opinion is online at
http://www.supremecourt.gov/opinions/11pdf/11-182b5e1.pdf

Arizona might be able to get a rehearing under Supreme Court Rule 44.  Rehearings are hard to get, but are possible if, for instance, a Supreme Court opinion was premised on the prevailing party acting a certain way, but changing its behavior as soon as the opinion was issued.

In the SB 1070 case, that situation exists.  Federal practices and programs were part of the basis for the opinion; see the opinion's discussions about the discretion of federal officers, and cooperation between Arizona and the US.  Immediately after the SB 1070 opinion came out, the feds changed their ways.

For instance, this article --
. http://www.tucsonsentinel.com/local/report/062512_dhs_immigration/dhs-no-more-pickups-noncriminal-suspected-illegal-aliens/
-- reports that since the opinion came out, "Federal immigration agents won't go to pick up people who are suspected by Arizona police of being illegal immigrants unless the suspects are convicted criminals, recent border crossers, or have been previously deported," and "Homeland Security cancelled federal-local immigration task forces [which] allowed local police to make arrests for immigration offenses."  And this article --
. http://www.tucsonnewsnow.com/story/18878923/federal-hotline-set-up-on-arizona-immigration
-- notes that the feds just set up an 800-number hotline for reporting conduct by Arizona police officers.  This will make officers "walk on eggs" not to upset illegals, hence will make Arizona a more attractive target for illegal entry.  In other words, the feds are creating a patchwork immigration system, despite their argument in the Supreme Court that they oppose a patchwork system.  Of course, the feds accept a patchwork of "sanctuary cities" such as San Francisco, but singling out Arizona now makes it even more obvious that the feds don't want a uniform policy, they want a patchwork policy, as long as they control it.

The feds are certainly within their legal rights to run their own programs, but winning a case by telling the Supreme Court one thing, then immediately changing that thing after winning the case, may leave some justices on the Supreme Court feeling like saps.

At a rehearing, Kennedy is the justice most likely to change his vote.  He obviously worked very hard to get a coalition to approve the decision that he signed, and may well feel used by the feds.  Roberts could easily follow Kennedy's lead, and so could Breyer -- and with those three joining the dissenters (Alito, Scalia, and Thomas) all of the challenged parts of SB 1070 would be upheld.

This writer wants to emphasize two things:

-- 1, he does not think that SB 1070 matters much to life along the border; it's aimed at economic conditions well north of the border.  What Cochise County needs is protection for its 84 miles of border instead of diversion of law enforcement from that 84-mile line to the 6500 square miles north of the line.

-- 2, people living along the border worry about crimes like murder, assault, theft, burglary, and wrecking property.  Let people far north of the border worry about bigger issues; along the border, the feds should stop the drug cartels from taking over, so that Americans -- NO MATTER WHAT THEIR ETHNIC DESCENT! -- can wake up and go about their lives without worrying about being killed or robbed, or having their home burgled, their well wrecked, or their water wasted, by minions of drug cartels.

The following is from before the ruling:
SB 1070 -- AS WE WAIT, A LOOK BACK


Since SB 1070 was passed, we've followed it.  Over the last two years, we've attacked bad newspaper reporting that substituted propaganda for the actual language of the law, we've disagreed with Sheriff Dever about the ACLU (we love it, he doesn't) while we supported his actions along the border, we've noted that Russell Pearce is trying to take credit for writing a bill which he didn't write, and we've noted that SB 1070 is mainly aimed at problems "inland" from the border, not the actual problems at the line, which would concern Cochise County more.  Here's a little of our coverage during the last two years.  What follows is by no means complete, but it may be useful as a start.

This update's first look at SB 1070, from May 24, 2010, included:
.  The complete text of Arizona's new immigration law, as amended a few days after its original passage, is at
.     http://azleg.gov/alispdfs/council/SB1070-HB2162.PDF
.  ARS 11-1051(A) says "NO OFFICIAL OR AGENCY OF THIS STATE OR A ... POLITICAL SUBDIVISION OF THIS STATE MAY LIMIT OR RESTRICT THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW."  Outside of the irony of small-government conservatives pushing a bill that maximizes federal power, that doesn't seem obnoxious.
.  ARS 11-1051(B), the language most complained about, says "FOR ANY LAWFUL STOP, DETENTION OR ARREST MADE BY A LAW ENFORCEMENT OFFICIAL OR ... AGENCY OF THIS STATE OR A ... POLITICAL SUBDIVISION OF THIS STATE IN THE ENFORCEMENT OF ANY OTHER LAW OR ORDINANCE [in] 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.  THE PERSON'S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).  A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A ... POLITICAL SUBDIVISION OF THIS STATE MAY NOT CONSIDER RACE, COLOR OR NATIONAL ORIGIN IN IMPLEMENTING THE REQUIREMENTS OF THIS SUBSECTION EXCEPT TO THE EXTENT PERMITTED BY THE UNITED STATES OR ARIZONA CONSTITUTION.  A PERSON IS PRESUMED TO NOT BE AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES IF THE PERSON PROVIDES TO THE LAW ENFORCEMENT OFFICER OR AGENCY ANY OF THE FOLLOWING:
.     1.  A VALID ARIZONA DRIVER LICENSE.
.     2.  A VALID ARIZONA NONOPERATING IDENTIFICATION LICENSE.
.     3.  A VALID TRIBAL ENROLLMENT CARD OR OTHER FORM OF TRIBAL IDENTIFICATION.
.     4.  IF THE ENTITY REQUIRES PROOF OF LEGAL PRESENCE IN THE UNITED STATES BEFORE ISSUANCE, ANY VALID UNITED STATES FEDERAL,STATE OR LOCAL GOVERNMENT ISSUED IDENTIFICATION.
That is --
.  -- a stop, detention or arrest must be
.  -- -- lawful, and
.  -- -- based on a violation of some law other than this one; and
.  -- before any attempt to determine immigration status, there must be reasonable suspicion that a person is an alien;
.  -- and if a person's immigration status may be questioned, then the possession of ordinary identification creates a presumption that a person is not an alien.
.  And if matters go beyond a mere stop or detainment to an arrest, "the person's immigration status [shall be] determined before the person is released.  The ... status shall be verified with the federal government ...."  As above, it's ironic to see anti-federalist conservatives push a bill that defers to federal power.  Perhaps the language is racist; perhaps not; perhaps those who disagree will never convince each other.
.  Some provisions of the bill seem far-fetched, but so do some objections to them.  For instance, in ARS 13-2319, which prohibits smuggling human beings for profit, Section E says "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."  It seems incredible that we need a law saying that a cop can enforce traffic laws; but it also seems incredible that anyone would object to such a law as racist.
.  Very controversial language is in ARS 13-2928, which includes
.     "A.  IT IS UNLAWFUL FOR AN OCCUPANT OF A MOTOR VEHICLE THAT IS STOPPED ON A STREET, ROADWAY OR HIGHWAY TO ATTEMPT TO HIRE OR ... PICK UP PASSENGERS FOR WORK AT A DIFFERENT LOCATION IF THE MOTOR VEHICLE BLOCKS OR IMPEDES THE NORMAL MOVEMENT OF TRAFFIC.
.     "B.  IT IS UNLAWFUL FOR A PERSON TO ENTER A MOTOR VEHICLE THAT IS STOPPED ON A STREET, ROADWAY OR HIGHWAY IN ORDER TO BE HIRED BY AN OCCUPANT OF THE MOTOR VEHICLE AND TO BE TRANSPORTED TO WORK AT A DIFFERENT LOCATION IF THE MOTOR VEHICLE BLOCKS OR IMPEDES THE NORMAL MOVEMENT OF TRAFFIC."
Obviously that language is aimed mostly at preventing the hiring of Mexicans illegally in the U.S.  On the other hand, Section A restricts employers as much as Section B restricts employees.
.  But Section C of 13-2928 affects illegals only, not employers:
"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."  Here illegally? You are breaking the law by getting a job.  But unlike Sections A and B, that doesn't apply to employers.  That gap is filled by ARS 23-212, whose Section A says "AN EMPLOYER SHALL NOT KNOWINGLY EMPLOY AN UNAUTHORIZED ALIEN.  IF ... THE EMPLOYER KNOWINGLY CONTRACTS WITH ... A PERSON WHO EMPLOYS OR CONTRACTS WITH AN UNAUTHORIZED ALIEN TO PERFORM THE LABOR, THE EMPLOYER VIOLATES THIS SUBSECTION."  ARS 23-212.01 is similar, but ... deals with "intentionally" employing an illegal....

On July 8, 2010, we posted the federal complaint against SB 1070 at
http://www.justice.gov/opa/documents/az-complaint.pdf
and added "One noteworthy thing about the complaint is this:  it emphasizes the federal laws and regulations which have been created, without ever acknowledging that this system is a train wreck, which comes nowhere near working, and that the new Arizona law was passed not because there are no federal laws, but because the feds just won't enforce all the laws they've passed.  On the other hand, the complaint criticizes Arizona's new law as a disaster, without being willing to wait and give it a chance to work.  It's a remarkable double standard...."

On July 12, 2010, we posted our own paragraph-by-paragraph look at the federal complaint, at
http://littlebigdog.net/SB1070ComplaintAnalysis.htm

On July 23, 2010, we looked at another of the lawsuits against SB 1070:
.  A group of plaintiffs has joined together to bring a suit against the enforcement of SB 1070.  A copy of the Complaint is at
.     http://maldef.org/legal/sb1070_complaint_final.pdf
.  The Plaintiffs are, in the order listed on the Complaint,
.     AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT ["ACLU"]
.     NATIONAL IMMIGRATION LAW CENTER ["NILC"]
.     MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND ["MALDEF"]
.     FRIENDLY HOUSE
.     SERVICE EMPLOYEES INTERNATIONAL UNION ["SEIU"]
.     SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 5
.     UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION ["UFCW"]
.     ARIZONA SOUTH ASIANS FOR SAFE FAMILIES ["ASAFSF"]
.     SOUTHSIDE PRESBYTERIAN CHURCH
.     ARIZONA HISPANIC CHAMBER OF COMMERCE ["AZHCC"]
.     ASIAN CHAMBER OF COMMERCE OF ARIZONA ["ACC"]
.     BORDER ACTION NETWORK ["BAN"]
.     TONATIERRA COMMUNITY DEVELOPMENT INSTITUTE ["Tonatierra"]
.     MUSLIM AMERICAN SOCIETY ["MAS"]
.     JAPANESE AMERICAN CITIZENS LEAGUE ["JACL"]
.     VALLE DEL SOL INC.
.     COALICION DE DERECHOS HUMANOS ["Derechos Humanos"]
.     ANDREW ANDERSON
.     VICKI GAUBECA
.     C.M., a minor
.     LUZ SANTIAGO
.     JIM SHEE
.     JOSE ANGEL VARGAS
.     JESUS CUAUHTEMOC VILLA
.     [three DOEs]
.     Apparently the NAACP was later added as a plaintiff.
.  The Defendants are every elected County Attorney and elected County Sheriff in Arizona, in their official capacities only.  For Cochise County, that means County Attorney Ed Rheinheimer and County Sheriff Larry Dever.
.  After identifying the parties, the Complaint, beginning in paragraph 61, gives a description of SB 1070's "history and intent."  This section closes with para. 73, which states "SB 1070 has caused racial tensions because it is widely understood that it is motivated by and will result in discrimination against Latinos and other racial minorities in Arizona on the basis of their race and national origin."  [This writer must comment:  As far as this writer knows, SB 1070 was motivated by the consequences of the federal failure to protect the border; if the feds did their job, SB 1070 wouldn't even have been considered.  The fact that most illegal aliens coming north from Mexico are of some kind of Hispanic descent does not make it racist to oppose illegal entry from Mexico.  If it were automatically racist to oppose illegal aliens entering the country from Mexico, then a lot of people from "Mexican-descent" families must hate their own heritage, because they sure don't like illegal aliens.  Also, if it were automatically discriminatory to pass laws against acts committed mostly by members of an identifiable group, then it would be anti-white and anti-male to pass laws regulating investment banking firms.  And finally, a legal Complaint that asserts what's "widely understood" is of pretty low quality.]
.  Then the Complaint, beginning in para. 74, describes "key provisions" of SB 1070.
.     Beginning in para. 114, the Complaint describes the federal system of immigration regulation.
.     Beginning in para. 144, the Complaint argues that SB 1070 "interferes with federal interests."
.     Beginning in para. 149, the Complaint argues that SB 1070 "promotes racial profiling and endangers minority communities."
.     Beginning in para. 164, the Complaint defines the class of people on whose behalf this class action is brought.
.     Beginning in para. 169, the Complaint states the harm which the Plaintiffs will suffer if SB 1070 is allowed to take effect.
.     Beginning in para. 180, the Complaint states its technical "Causes Of Action."
.     -- Count I, violation of the Supremacy Clause
.     -- Count II, violation of equal protection; 42 USC 1983
.     -- Count III, violation of the First Amendment; 42 USC 1983
.     -- Count IV, violation of the Fourth Amendment; 42 USC 1983
.     -- Count V, violation of Art II, Sec 8, Arizona Constitution
.     -- Count VI, due process; 42 USC 1983
.     -- Count VII, privileges and immunities, & right to travel; 42 USC 1983
.     -- Count VII, section 1981; 42 USC 1983
.  The Complaint closes by asking that SB 1070 be declared unConstitutional, and that the Defendants be enjoined from enforcing SB1070 and also required to pay the Plaintiffs' costs.
.  The Plaintiffs have moved for a preliminary injunction against all the Defendants, to keep them from enforcing SB 1070.  The motion is online at
.     http://maldef.org/legal/1070_lodged_pi_motion.pdf

On July 30, 2010, we discussed the judge's ruling on the preliminary injuction, at
.   http://littlebigdog.net/ArizonaSB1070RulingInFedCtJuly28.htm
including this summary:
.  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
.     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.

Now, the Supremes will stand and deliver.