THE FEDERAL LAWSUIT AGAINST ARIZONA'S SB 1070 (originally posted 7/12/10; more comments added 7/16/10)
The federal government has sued Arizona (and its governor) to block implementation of SB 1070, Arizona's new immigration law.
The complete text of SB 1070 is at
The lawsuit began with
the filing of a Complaint in the federal district court for
Arizona. The Complaint is in .pdf form at
and a text version is at
Arizona (and the Governor) must now file an Answer.
In what follows, the numbered
paragraphs are condensations of the same-numbered paragraphs in the
Complaint. Each paragraph is followed by a "--COMMENT" by this
writer, and sometimes a numbered paragraph is interrupted by a
--COMMENT, in which case the text of the paragraph resumes after the
This article is intended to be
unbiased -- which does not mean that no opinions will be made; it means
that any opinions will be based on facts, not on the author's
preconceptions. The result turned out to be generally, but
not always, unfavorable to the lawsuit -- because, the author
hopes, of the facts. Some parts of this article make favorable
comments on the lawsuit. The article concludes that within
SB 1070, Sections 4, 5, and 6 (see the discussion of Paragraphs 50
through 59) have difficulties, most of which can be solved by
slight modifications, either to law enforcement procedure or to
the text of SB 1070.
Reader input is welcome at
Paragraphs 1 through 32 are
basically rhetoric, ostensibly praising the US Constitution and the
laws passed under it, but subtly making an assumption that Executive
branch policies (ultimately the President's responsibility) "outrank"
the laws actually passed by the Legislative branch (Congress) and that
the Executive can prioritize enforcement of the laws in ways which
amount to ignoring them. Certainly there are many federal laws on
immigration, and it would be impossible to enforce them all with equal
vigor; but "prioritizing" that effectively nullifies some laws appears
to conflict with the President's obligation in the Constitution,
Article II section 3, to "take care that the laws be faithfully
Paragraphs 33 through 60
discuss SB 1070 in particular. The rest of the Complaint states
the Executive branch's theories in legal language, and what the
Executive branch wants. When Arizona files its Answer, it can
respond to anything in the Complaint.
A conspicuous feature of the
Complaint is that it never addresses the Executive's utter
ineffectiveness in securing the border. The Complaint implies
that Arizona is meddling with a system that works. Arizona's
Answer to the Complaint may focus on the conflicts between reality and
1. SB 1070 is preempted by federal law and therefore violates the Supremacy Clause of the Constitution.
-- COMMENT 1: The
Supremacy Clause (Article VI, clause 2) says "the Constitution, and the
Laws 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." Read "tightly," the clause means that no state
law can contradict a law passed by Congress on the same subject; read
"loosely," the clause means that a state law may not even be any kind
of "obstacle" to a law passed by Congress. If this case reaches
the Supreme Court, the Court must decide the proper spot within that
-- COMMENT 2: Despite all
the public accusations about racism, the Complaint barely mentions
it. The public attacks on SB 1070 may differ greatly from what
the parties say in court.
2. Our Constitution gives the federal government power over immigration.
-- COMMENT: It is not
"the federal government" in general which has power over immigration,
it is Congress in particular; Constitution, Article I, section 8.
The Complaint often says "the federal government" when it really means
just one of the Executive or Legislative branches.
Federal immigration laws
reflect a careful balance of national law enforcement, foreign
relations, and humanitarian interests. Congress has given various
federal agencies the task of enforcing and administering these
laws. These federal agencies balance complex, and often
-- COMMENT 1: It can be argued that if the laws were "carefully balanced," they would not push "competing objectives."
-- COMMENT 2: However the
Executive ADMINISTERS immigration laws, it ENFORCES them poorly.
Without dispute, the border crisis is caused by poor federal
enforcement of existing laws.
-- COMMENT 3: The
Complaint talks quite a bit about balancing complex and competing
objectives. In plain English: the Executive branch does not
want Arizona to enforce immigration laws using priorities different
from Executive branch policies.
-- COMMENT 4: The
Executive's task is impossibly difficult: it is impossible to
enforce all the immigration laws passed by Congress. In a perfect
world, the Executive would tell Congress to pass laws that can be
enforced. However, in this imperfect world, government is not run
by people who shrink from power; and anyone who attains the Presidency,
the most powerful office of all, is probably temperamentally unsuited
to giving up any of its powers. As Obama, like every other
President, succumbs to the allure of power, it seems to this writer
that citizens should recognize the problem, work to limit the
growth of Executive power, and oppose the "Executive Supremacy"
doctrine, which is sometimes called the "unitary presidency" doctrine.
States may exercise their
police power in a way that has an incidental or indirect effect on
aliens, but not in a way that interferes with federal immigration laws.
-- COMMENT: That's a
false opposition, because states could pass laws that directly affect
aliens but don't interfere with federal law; for instance, a state
could strictly enforce a law that copied federal immigration law.
However, even that would be unwelcome to the Executive, because the
Complaint is less about "Federal Supremacy" over states than about
"Executive supremacy" over the Legislative branch.
The Constitution and the federal immigration laws do not allow a patchwork of state and local immigration policies.
-- COMMENT: This is
another false opposition, because local laws need not be a patchwork;
for instance, every border state could pass a law identical to SB
1070. The result would not be a "patchwork," but the Executive
would still try to get those laws stricken, because their
existence would interfere with the Executive supremacy.
3. SB 1070 is designed to
deter and punish illegal aliens by requiring, whenever practicable, the
determination of immigration status during any lawful stop by the
police where there is "reasonable suspicion" that an individual is an
illegal alien, and by establishing state criminal sanctions against
illegal aliens. This goal is reinforced by a provision allowing
for any legal resident of Arizona to collect money damages by showing
that "any official or agency ... [has] adopt[ed] or implement[ed] a
policy" that "limits or restricts the enforcement of federal
immigration laws ... to less than the full extent permitted by federal
-- COMMENT 1: The
Complaint mentions, but only barely, SB 1070's requirement that a
"lawful stop" be based on the apparent commission of some state or
local crime, NOT on mere suspicion of being an illegal alien.
-- COMMENT 2: Arizona's
"citizen damages" provision applies only to conduct by officials of
Arizona or its subdivisions, not to conduct by federal officers.
-- COMMENT 3: The
Complaint suggests that state law officers will always exercise their
discretion in favor of searching out illegal aliens, because otherwise
officers will be afraid of being sued by disgruntled citizens.
That's an ironic argument, because even though the threat of a lawsuit
by the most powerful Executive in history did not intimidate Arizona,
that same powerful Executive now argues that Arizona will be
intimidated by threats from private citizens.
4. SB 1070 pursues only
"attrition" and ignores the many other objectives that Congress has set
for immigration. SB 1070 disrupts federal enforcement priorities
and resources that focus on aliens who pose a threat to national
security or public safety. SB 1070's mandatory enforcement scheme
conflicts with and undermines the Executive's policies balancing
immigration enforcement priorities and objectives. For example,
SB 1070 will impose significant burdens on the federal agencies charged
with enforcing the national immigration scheme, diverting resources and
attention from the dangerous aliens who are the Executive's top
-- COMMENT 1: Once again,
the Complaint is arguing that the Legislative branch has passed laws
which the Executive does not wish to enforce, and that Arizona's
attempt to actually secure the border interferes with that policy -- an
Executive policy, not a Legislative enactment.
-- COMMENT 2: To win this
argument, the feds must show that fewer dangerous aliens will be snared
by a small army of Arizona law enforcement officers, than by a
relatively few federal officers.
SB 1070 will cause the
detention and harassment of authorized visitors, immigrants, and
citizens who do not have or carry identification documents specified by
the statute, or who otherwise will be swept up by SB 1070.
-- COMMENT: This argument
is far-fetched. Just about every American citizen carries
multiple forms of identification, and is already used to producing them
even for trivial matters. If this is not harassment for
Americans, and does not lead to their widespread detention, it should
not lead to those results for aliens.
SB 1070 will conflict with longstanding federal law governing the registration, smuggling, and employment of aliens.
-- COMMENT: SB 1070 will
not interfere with Legislative enactments, it will interfere with the
Executive supremacy over laws passed by Congress.
SB 1070 will altogether ignore
humanitarian concerns, such as the protections available under federal
law for an alien who has a well-founded fear of persecution or who has
been the victim of a natural disaster.
-- COMMENT: If the
Executive branch issued papers to such aliens, there would be no such
problem at all. From Arizona's point of view, requiring that
small effort by the Executive is much better than letting the border
situation continue to collapse.
SB 1070 will interfere with
vital foreign policy and national security interests by disrupting the
US's relationship with Mexico and other countries.
-- COMMENT: The US's
relationship with Mexico is already disrupted. Mexico is falling
apart; only an excess of courtesy keeps it from being classified as a
"failed state." Mexican drug cartels are beginning to control and
even supplant government on a large scale; cartel activity is coming
north of the border more often; and Americans are having their property
trashed, their homes invaded, and their lives threatened and even
taken. The Executive branch should be required to elucidate, with
great detail and precision, just what "vital foreign policy" interests
require the abuse and abandonment of Arizonans.
5. The US understands
Arizona's legitimate concerns about illegal immigration, and has
undertaken significant efforts to secure our nation's borders.
-- COMMENT: That's
ridiculous. The Complaint shows no signs of understanding
anything about life along the border. Federal law enforcement
isn't focusing on securing the border itself; the policy is to let
illegals cross the border -- 700 miles of it in Arizona -- then make a
half-hearted effort to catch them in the 100 miles north of the border
-- 70,000 square miles. 7000 troops along the Arizona border
would be 10 troops per mile; 7000 troops in south 100 miles of Arizona
is one troop per 10 square miles. And the Executive won't provide
anything like 7000 troops. The Executive policy is designed to
The federal government,
moreover, welcomes cooperative efforts by states and localities to aid
in the enforcement of the nation's immigration laws. But ...
-- COMMENT: Everyone has
heard this before: "That is good, but ...." It always
means, "That's not good." So, the reality of the Executive's
thoughts follows that "but."
-- COMMENT ADDED
7/16/10: This suggests an interesting "thought experiment."
Let's say that SB 1070 didn't exist, but that Arizona strictly
enforced federal law without adding any law of its own. The feds
could then make the same objections they make now, about being
overloaded etc., and would have to argue that Arizona should not be
allowed at all to "aid" in the enforcement of federal immigration law.
If the federal objections would be the same as long as Arizona
cracked down on illegal immigration, whether or not Arizona had a law
of its own, then the federal objections are obviously not really to
Arizona's laws, but to Arizona's efforts. The case shifts from
the federal government being unable to protect Arizona's borders,
to the federal government being unwilling to protect Arizona's borders.
If the court grants an injunction to prevent Arizona's law from
taking effect, and Arizona responds by "aiding" via vigorous
enforcement of federal law, then the Executive branch might have to
take Arizona to court in another action, in which the Executive would
have to argue explicitly that Executive policy is against the
enforcement of Legislative enactments. That would be an
interesting argument to watch.
But the Constitution forbids
Arizona from supplanting the federal government's immigration regime
with its own immigration policy, that interferes with the numerous
interests the federal government must balance when enforcing and
administering immigration laws, and disrupts the balance actually
established by the federal government. Accordingly, SB 1070 is
invalid under the Supremacy Clause of the Constitution and must be
-- COMMENT: In arguing
that local efforts are welcome if they cooperate with, but forbidden if
they conflict with, Executive policy, the Complaint is revealing the
real issue: that it's Executive policies, not Legislative
enactments, which are at issue; and in support of Executive supremacy
over Congress, the Executive is willing to sacrifice Arizonans' rights
to life, liberty, and the pursuit of happiness.
STATEMENT OF THE CLAIM
Federal Authority and Law Governing Immigration and Status of Aliens
14. The Supremacy Clause
of the Constitution mandates that the "Constitution, and the Laws of
the United States which shall be made in Pursuance thereof ... shall be
the supreme Law of the Land ... any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding." Const. art. VI cl.
-- COMMENT: Correct; but the Complaint continually confuses actual laws with Executive policy.
15. The Constitution
gives the federal government power to "establish an uniform Rule of
Naturalization" and "regulate Commerce with foreign Nations."
Further, the federal government has broad authority to establish the
terms and conditions for entry and continued presence in the US, and to
regulate the status of aliens within the boundaries of the US.
-- COMMENT: The
Constitution does not give "the federal government" power to establish
rules for naturalization, and regulate commerce; the Constitution gives
that power to Congress. Article I, Section 8, says "Congress
shall have power ... To regulate commerce with foreign nations, and
among the several states [and] To establish a uniform rule of
naturalization ... throughout the United States." Once again, the
brief is ignoring the distinction between Executive policy and
16. The Constitution
gives the President the authority to "take Care that the Laws be
faithfully executed." Further, the President has broad authority
over foreign affairs. Immigration law, policy, and enforcement
priorities are affected by and have impacts on US foreign policy, and
are themselves the subject of diplomatic arrangements.
-- COMMENT: The first
sentence is true, and the rest of the paragraph is true; however, there
is tension between the first sentence and the rest of the
paragraph. The first sentence talks about the President
faithfully executing the laws; the rest of the paragraph is about
reasons for the president NOT to faithfully execute the laws, but to
replace them with "policy."
17. Congress has
exercised its authority by enacting various laws regulating
immigration. The executive branch has been given considerable
discretion in enforcing federal immigration laws, generally allowing
federal agencies to ultimately decide whether particular immigration
remedies are appropriate in individual cases.
-- COMMENT 1: This is the
Complaint's strongest argument for "Executive supremacy," under which
Legislative enactments aren't treated as actual laws, but merely as
-- COMMENT 2: If the
Executive branch can make exceptions for individual cases, that is not
equivalent to letting the Executive decide not to apply the law for
entire classes of aliens.
18. In exercising its
discretion, the federal government prioritizes for arrest, detention,
prosecution, and removal those aliens who pose a danger to national
security or a risk to public safety. Consistent with these
priorities, the federal government principally targets aliens engaged
in or suspected of terrorism or espionage; aliens convicted of crimes,
with a particular emphasis on violent criminals, felons, and repeat
offenders; certain gang members; aliens subject to outstanding criminal
warrants; and fugitive aliens, especially those with criminal records.
-- COMMENT 1: Again, the
Complaint fails to distinguish "the federal government" from the
Executive branch, which in this Complaint is attempting to obtain
supremacy over the Legislative branch.
-- COMMENT 2: The paper
scheme has no relationship to reality: a border that's a sieve, a
border area that's rife with violence from the very people that the
Executive claims to be targeting, and rife with fears of more such
19. In setting federal
immigration law and policy, Congress has taken into account multiple,
and often competing, national interests. Assuring effective
enforcement of the provisions against illegal migration and unlawful
presence is highly important, but the laws also take into account other
uniquely national interests, including facilitating trade and commerce;
welcoming foreign nationals who visit or immigrate lawfully, and
ensuring their fair and equitable treatment wherever they may reside;
responding to humanitarian concerns at the global and individual
levels; and otherwise ensuring that our treatment of aliens does not
harm our foreign relations or jeopardize the treatment of US citizens
abroad. Because flexibility is required, Congress gave the
Executive branch substantial discretion to adjust the balance of these
multiple interests as appropriate -- both globally and in individual
-- COMMENT: This
paragraph follows up on the concerns raised by paragraph 17
above. Let's compare reality to the Complaint's list of "uniquely
-- -- facilitating trade and
commerce: as if the open border did not primarily encourage human
smuggling and trade in illegal drugs, in the northward directions; and
trade in weapons that are illegal in Mexico, in the southward direction.
-- -- welcoming foreign
nationals who are here legally, and ensuring their fair treatment
wherever they reside: most foreign nationals who are in the US
lawfully will have papers showing their right to enter the US; and in
the few cases (see paragraphs 26, 43, and 48 below) where individuals
enter without receiving papers, papers could easily be issued.
-- -- responding to
humanitarian concerns at the global and individual levels: Mexico
does have a lower standard of living than the US, but it would be
unreasonable to say that a lower standard of living constitutes a
humanitarian crisis; also, US citizens living along the border have
first claim to protection by the US government, and the sievelike
border is creating a genuine crisis for people whose property, lives,
and homes are unsafe because of illegals, including hordes of
transients, but also including members of Mexican drug cartels.
-- -- otherwise ensuring that
our treatment of aliens does not harm our foreign relations or
jeopardize the treatment of US citizens abroad: if US law is
compared to Mexico's, the US wins hands down; the Mexican government
has no reasonable basis for complaining about US immigration law.
Also, it could be argued that the Executive should give top priority to
the treatment of US citizens inside our own country.
20. Congress has tasked
federal agencies with overseeing significant portions of US immigration
interests, and has provided each with specific powers to promote the
various goals of the federal immigration scheme and to enforce the
federal immigration authority under the INA. However, in the
exercise of discretion, agencies may decide not to apply a specific
sanction and may, among other steps, permit the alien to depart the
country voluntarily at his or her own expense, and may even decide not
to pursue removal of the alien if deferred enforcement will help pursue
some other goal of the immigration system.
-- COMMENT: Correct, but utterly disconnected from reality on the border, and without any regard for Arizona citizens.
21. Under federal law,
agencies may, for humanitarian or other reasons, decline to exercise
certain immigration sanctions or grant an otherwise unlawfully present
or removable alien an immigration benefit -- and potentially adjust
that alien's immigration status -- for aliens who, for instance, have a
well-founded fear of persecution because of race, religion,
nationality, membership in a particular social group, or political
opinion; who are nationals of a foreign state that the Executive has
specially designated as undergoing ongoing armed conflict, a natural
disaster, or another extraordinary circumstance; who qualify for wavier
from deportability "for humanitarian purposes, to assure family unity,
or when it is otherwise in the public interest;" and so on.
-- COMMENT: As with
paragraph 20 above, all this is admirable on paper, but unrelated
to actual life for US citizens living along Arizona's border with
22. In light of these
statutory provisions, agencies exercise discretion with respect to
allowing an illegal alien to depart voluntarily; beginning removal
proceedings; exacting criminal sanctions; allowing an illegal alien to
stay without physical detention; granting humanitarian relief; and so
on. Such decisions result not only from resource constraints, but
also from affirmative policy considerations, including humanitarian and
foreign policy interests, established by Congress and balanced by the
-- COMMENT: As with paragraphs 20 and 21, fine language, but not well connected to reality.
23. Congress has
affirmatively decided that unlawful presence, by itself, should not
subject an alien to criminal penalties and incarceration, although it
may subject the alien to the civil remedy of removal. However,
unlawful presence becomes an element of a criminal offense when an
alien is found in the US after having been previously removed or after
voluntarily departing from the US while a removal order was
pending. Further, unlawful entry into the US is a criminal
offense. Congress specifically authorized federal immigration
officers to patrol the US border, as well as search vehicles and lands
near the border, to prevent aliens from unlawfully entering the US, and
it empowered these officers to arrest an alien who is seen attempting
unlawful entry at the border or who the officer has reason to believe
has unlawfully entered the county and is likely to escape before a
warrant can be obtained.
-- COMMENT: Paragraph 23
says what Congress has allowed -- but that is no reason to prohibit
Arizona from following what Congress allows. Also, it is
important to note something that opponents of SB 1070 often downplay or
outright ignore: SB 1070 does not let an officer stop anyone merely for
suspicion of unlawful presence; any stop must be based on suspicion of
some other crime.
24. Congress has created
a comprehensive registration system for monitoring the entry and
movement of aliens within the US. Any alien who must apply for
registration, and willfully fails to do, so may be fined and imprisoned
up to six months.
-- COMMENT 1: Paragraph
24 is not quite true; Paragraph 26 explains that some legally admitted
aliens will not have papers.
-- COMMENT 2: Paragraph
24 assumes that the system works; in reality, it falls far short of
working. Once again, the Complaint is simply ignoring reality.
25. As part of this
federal system, Congress further specified the content of the
registration forms, what special circumstances may require deviation,
and the confidential nature of registration information. Aliens
aged 18 years or over must carry in their possession their certificate
of alien registration or alien registration receipt card; any alien who
fails to comply may be fined and imprisoned not more than 30 days.
-- COMMENT: Same as for
paragraph 24: Paragraph 26 sets out cases in which legally
admitted aliens will not have papers.
26. However, in several
circumstances, an alien might not be provided with evidence of
registration notwithstanding the federal government's knowledge of the
alien's presence. Federal law provides a variety of humanitarian
programs for which aliens may apply. During the pendency of an
application, an alien might not possess evidence of registration even
though the federal government is aware of the alien's presence, has
decided against removing the alien, and has no interest in prosecuting
the alien for a crime. It would violate federal policy for
Arizona to prosecute or detain these types of aliens while their
application is pending.
-- COMMENT: The Executive
could easily issue written documentation for such aliens while their
application is pending. Illegal aliens with such documentation
would not be at risk of deportation because of their status. The
Executive should not attempt to undo Arizona's law because the
Executive does not wish to follow ordinary prudence in processing
27. Congress has also
exercised its authority by criminalizing the smuggling of unlawful
aliens into the country or the facilitation of unlawful immigration
within the nation's borders. Congress chose not to penalize an
illegal alien's mere movement within the country or across state lines
unless other factors are present, nor do the federal immigration laws
penalize the provision of transportation services in such situations.
-- COMMENT: A fair statement of the law.
28. Federal law also
imposes criminal penalties on a person who conceals, harbors, or
shields from detection an alien, in knowing or in reckless disregard of
the fact that the alien has unlawfully entered or remained in the
US. Similarly, it is unlawful to encourage or induce an alien to
come to, enter, or reside in the US, knowing or in reckless disregard
of the fact that such entry or residence will violate the law.
Federal law does not, as a general matter, restrict the movement of
aliens, either lawfully or unlawfully present, between states.
Federal law additionally exempts from certain of these prohibitions
religious organizations which encourage, invite, call, allow, or enable
an alien to volunteer as a minister or missionary, and which provide
the alien with basic living expenses.
-- COMMENT 1: So?
-- COMMENT 2: Why should religious organizations receive permission to violate the law?
29. Congress has further
exercised its authority by prohibiting the hiring of aliens not
authorized to work in the US. Federal law makes it unlawful to
hire, or to recruit or refer for a fee an alien, knowing that the alien
is not authorized to work in the US. Federal law also makes it
unlawful, after hiring an alien, to continue to employ the alien in the
US knowing the alien is (or has become) an unauthorized alien with
respect to such employment. In addition, Congress established
civil penalties for immigration-related document fraud. But no
criminal penalty attaches simply because an alien has solicited or done
work without proper authorization.
-- COMMENT: At last, a
difference between SB 1070 and federal law. SB 1070 does
criminalize an illegal alien who finds work in the US. For this,
SB 1070 may well violate the doctrine of Federal Supremacy -- but
recall this is a difference between SB 1070 and a law passed by
Congress, not a mere disagreement with Executive policy.
30. Congress prescribed
by statute a number of ways in which states may assist the federal
government in its enforcement of the immigration laws.
-- COMMENT 1: Once again, the Complaint fails to distinguish "the federal government" from the Executive branch.
-- COMMENT 2: If only the Executive branch actually did the job, instead of merely being well-organized on paper.
31. In a variety of ways,
the Executive branch works cooperatively with states and localities to
enforce the federal immigration laws.
-- COMMENT: Correct, but irrelevant to SB 1070.
32. But the opportunity
that federal law provides for participation by state and local
officials does not mean that states can enact their own immigration
policies to rival the national immigration policy; the formulation of
immigration policy and balancing of immigration enforcement priorities
is a matter reserved for the federal government. Such regulations
do not fall within the state's traditional police powers and remain the
exclusive province of the federal government.
-- COMMENT: Paragraph 32
is mere wordplay, like "I love liberty, but hate license" or "Freedom
of speech is good, as long as it doesn't upset anyone." Once
again, the Complaint is placing Executive policy over Legislative
The Complaint's language specifically about SB 1070
33. SB 1070 contains
several provisions designed to "work together to discourage and deter
the unlawful entry and presence of aliens" in Arizona by "attrition
through enforcement." SB 1070 includes Section 2, which requires,
in the context of a lawful stop, detention, or arrest, the verification
of an individual's immigration status when practicable where there is
"reasonable suspicion" that the individual is unlawfully in the US;
Section 2 is reinforced through the creation of a private right of
action, allowing any legal resident of Arizona to collect money damages
if he can show that any official or agency has adopted or implemented a
policy that limits or restricts the enforcement of federal immigration
laws to less than the full extent permitted by federal law. SB
1070 also creates or amends several state laws which impose criminal
penalties for an alien's failure to federally register or carry his
federal registration documents (Section 3), for the so-called
smuggling, transporting, or harboring of an unlawfully present alien
(Sections 4 and 5), for encouraging an unlawfully present alien to move
to Arizona (Section 5), and for an unauthorized alien's attempt to seek
work (Section 5). Further, SB 1070 provides law enforcement
officers with authority to make warrantless arrests of any person whom
they have probable cause to believe has committed a public offense that
would make the person "removable," regardless of where the offense was
committed (Section 6).
34. On the same day she
signed SB 1070 into law, Governor Brewer issued an executive order
requiring law enforcement training to "provide clear guidance to law
enforcement officials regarding what constitutes reasonable suspicion,"
and "make clear that an individual's race, color or national origin
alone cannot be grounds for reasonable suspicion to believe any law has
35. One week after SB
1070 was signed into law, the Arizona Legislature passed, and Governor
Brewer signed, HB 2162, which amended SB 1070 for the purpose of
responding to "fears that the original law would somehow allow or lead
to racial profiling."
36. SB 1070 as amended
attempts to second guess federal policies and re-order federal
priorities in the area of immigration enforcement and to directly
regulate immigration and the conditions of an alien's entry and
presence in the US despite the fact that those subjects are federal
domains and do not involve any legitimate state interest. SB 1070
disrupts the federal enforcement regime. SB 1070 also interferes
with US foreign affairs priorities and rejects any concern for
humanitarian interests or broader security objectives, and will thus
harm a range of US interests. Because SB 1070 attempts to set
state-specific immigration policy, it legislates in an area
constitutionally reserved to the federal government, conflicts with
federal immigration law and policy, conflicts with foreign policy, and
impedes the accomplishment and execution of the full purposes and
objectives of Congress, and is therefore preempted.
-- COMMENT: Where, in all this verbiage, is any thought for US citizens living along the border in southern Arizona?
37. SB 1070, among other
things, creates a series of state immigration crimes (Sections 3-5)
relating to the presence, employment, and transportation of aliens,
expands the opportunities for Arizona police to push aliens toward
incarceration for those crimes by enforcing a mandatory immigration
status verification system (Section 2), and allows for arrests based on
crimes with no nexus to Arizona (Section 6). SB 1070 conflicts
with and otherwise stands as an obstacle to Congress's demand
-- COMMENT: Congress does
not "demand" anything; Congress passes laws which it is the Executive's
duty to enforce. Saying that laws are "demands" by Congress upon
the Executive branch implies that the Executive branch outranks the
that federal policy accommodate
the competing interests of immigration control, national security and
public safety, humanitarian concerns, and foreign relations.
Enforcement of SB 1070 would also effectively create state crimes and
sanctions for unlawful presence despite Congress's considered judgment
to not criminalize such status. SB 1070 would thus interfere with
federal policy and prerogatives in the enforcement of the US
-- COMMENT: There it is,
clear and plain: the Complaint is about Executive supremacy over
the Legislative branch, not about "racial discrimination," despite the
Executive's ongoing public relations emphasis on racial discrimination.
38. Because SB 1070, in
both its purpose and operation, conflicts with the federal government's
balance of competing objectives in the enforcement of the federal
immigration laws, its passage already has affected US diplomatic
relations with other countries, including Mexico and many others.
SB 1070 has also had foreign policy implications concerning specific
national interests regarding national security, drug enforcement,
tourism, trade, and a variety of other issues. SB 1070 has
subjected the US to direct criticism by other countries and
international organizations and has resulted in a breakdown in certain
planned bilateral and multilateral arrangements on issues such as
border security and disaster management. SB 1070 has in these
ways undermined several aspects of US foreign policy related to
immigration issues and other national concerns that are unrelated to
-- COMMENT: It's hard to
imagine how Arizona's enforcement of SB 1070 could harm national
security, or increase drug trafficking. As to tourism and trade,
it's Arizona that will be hurt, if anyone is; and other states will
gain whatever income Arizona loses, so this is not a federal
problem. It's hard to imagine our federal government opposing SB
1070 because other countries don't like it; nowhere does the
Constitution give other countries a voice in making American law, and
in fact, this argument appears to contradict the brief's reliance, in
most places, on the Constitution. And where's any concern for
39. Numerous other states
are contemplating passing legislation similar to SB 1070. The
development of various conflicting state immigration enforcement
policies would result in further and significant damage to US (1)
foreign relations, (2) ability to fairly and consistently enforce the
federal immigration laws and provide immigration-related humanitarian
relief, and (3) ability to exercise the discretion vested in the
executive branch under the INA, and would result in the non-uniform
treatment of aliens across the US.
-- COMMENT: Words, words,
words. This argument is purely hypothetical, and is driven not by
the fear that Arizona will challenge federal supremacy, but by the hope
for Executive supremacy over the Legislative branch.
Specifically as to Section 2 of SB 1070
40. Section 2 of SB 1070
(adding ARS 11-1051) mandates that for any lawful stop, detention or
arrest made by a law officer or agency in the enforcement of any state
or local law, including civil ordinances, where reasonable suspicion
exists that an individual is an alien and is unlawfully in the US, the
officer must make a reasonable attempt to determine the individual's
immigration status when practicable, and to verify it with the federal
government or through a federally qualified law enforcement
officer. Section 2 also requires that any person who is arrested
have his immigration status determined before release.
-- COMMENT: A fair description.
41. Section 2 provides
that any legal resident of Arizona may, in an Arizona court, sue any
official or agency that "adopts or implements a policy that limits or
restricts the enforcement of federal immigration laws ... to less than
the full extent permitted by federal law." Whereas Arizona police
formerly had discretion to decide whether to verify immigration status
during the course of a lawful stop, this right to sue, combined with
the verification requirement, removes such discretion and mandates
verification. This provision also mandates the enforcement of the
remaining provisions of SB 1070.
-- COMMENT: Paragraph 41
is overblown rhetoric about a hypothetical situation, not about
anything that has occurred. It assumes that law officers are so
threatened by the possibility of a lawsuit that they give up their
judgment while doing their job. If law officers were so
vulnerable, then this would be a fine argument against the practicality
of such pretty schemes as the federal immigration system which the
brief earlier praised.
42. The mandatory nature
of Section 2, in tandem with SB 1070's new or amended state immigration
crimes, directs officers to seek maximum scrutiny of a person's
immigration status, and mandates the imposition of state criminal
penalties for what is effectively unlawful presence, even in
circumstances where the federal government has decided not to impose
such penalties because of federal enforcement priorities or
humanitarian, foreign policy, or other federal interests.
-- COMMENT: The Complaint
is making a prediction about SB 1070's effect, not a statement, and not
supported by any evidence, only by speculation. Unsupport,
speculative prediction is not a good basis for trying to stop a state
law from going into effect.
43. In addition, the
mandatory nature of this alien inspection scheme must result in
countless inspections and detentions of individuals who are lawfully
present in the US. Verification is mandated for all cases where
an Arizona police officer has a "reasonable suspicion" that a person in
a lawful stop is unlawfully present, and it is practicable to
verify. But "reasonable suspicion" is not proof, and will often
result in the verification requirement being applied unnecessarily to
lawfully present aliens and US citizens. Further, because federal
authorities may not be able to immediately verify lawful presence --
and may rarely have information related to stopped US citizens --
Section 2 will result in the prolonged detention of lawfully present
aliens and US citizens. Section 2 will therefore impose burdens
on lawful immigrants and US citizens alike who are stopped, questioned,
or detained and cannot readily prove their immigration or citizenship
status, including those individuals who may not have an accepted form
of identification because, for example, they are legal minors without a
-- COMMENT: All this is
hypothetical. If the difficulties were real, then the "fix" would
be for the Legislative branch to set different standards and procedures
in the immigration system, not for the Executive branch to make
"policies" superior to laws.
Arizona's alien inspection
scheme therefore will subject lawful aliens to the "possibility of
inquisitorial practices and police surveillance," a form of treatment
which Congress has plainly guarded against in setting a balanced,
federally-directed immigration enforcement scheme.
-- COMMENT: Once again,
the folks in DC show their complete ignorance of what life has become
near the border. American citizens within 100 miles north of the
border are already subject to the existence -- not the mere possibility
-- of police inquisitions and surveillance. Anyone who drives
north on US 191 or AZ 80 knows about our federal checkpoints, where
everyone is stopped by armed and uniformed personnel, eyeballed,
questioned, and perhaps searched "for training purposes." If
American citizens must put up with this in traveling inside our own
state, then why are aliens too good to be treated the same way?
44. Mandatory state alien
inspection schemes and attendant federal verification requirements will
impermissibly impair and burden federal resources and activities.
SB 1070's mandate for verification of alien status will necessarily
result in a dramatic increase in the number of verification requests,
and thereby place a tremendous burden on federal resources,
necessitating a reallocation of resources away from the priorities set
by the Executive.
-- COMMENT: Instead of
speculating -- implausibly -- that additional state help will be
obstructive, the Executive should better allocate resources so that its
own agencies can enforce the law.
The federal government will be required to divert resources from its own, carefully considered enforcement priorities --
-- COMMENT: Enough!
The Executive's "enforcement priorities" may in fact be "carefully
considered," but people living along the border see little evidence of
care or consideration for their welfare. It's enraging to see the
Complaint keep using loaded language to compliment the people writing
dangerous aliens who pose a
threat to national security and public safety -- to address the work
that Arizona will now create for it. Such interference with
federal priorities violates the Supremacy Clause.
-- COMMENT: The last
sentence states the issue clearly: the Complaint is arguing not
for the Federal Supremacy, but for the supremacy of Executive policies
over Legislative mandates.
45. Section 2 conflicts
with and otherwise stands as an obstacle to the full purposes and
objectives of Congress, and its enforcement would further conflict with
the enforcement prerogatives and priorities of the federal
government. Moreover, Section 2 does not promote any legitimate
-- COMMENT 1: In reality,
as opposed to the world of elevated words in the Complaint, Section 2
will help provide Arizonans the protection that the Executive branch
-- COMMENT 2: No
legitimate state interest? Evidently, the authors of the
Complaint believe that Arizona has no legitimate interest in protecting
the lives and property of its citizens, or their right to pursue
Section 3 of SB 1070
46. Section 3 (adding ARS
13-1509) makes it a new state crime for an alien in Arizona not to "at
all times carry with him and have in his personal possession any
certificate of alien registration or alien registration receipt card
issued to him," or to willfully fail to apply for registration when
required. Section 3 provides a state penalty of up to $100 and up
to twenty days imprisonment for a first offense and thirty days
imprisonment for any subsequent violation.
-- COMMENT: That's an
accurate description. It omits, however, that the law would
require aliens to do no more than carry basic identification, a
requirement with which almost every American citizen already complies.
47. Section 3 is
preempted by the comprehensive federal alien registration scheme, which
provides a "standard for alien registration in a single integrated and
all-embracing system." Section 3 conflicts with and otherwise
stands as an obstacle to the full purposes and objectives of Congress
in creating a uniform and singular federal alien registration scheme.
-- COMMENT: Paragraph 47
is false. Section 3 does not require an alien to carry a card
unless the feds have issued one. Section 3 does not contradict
the federal scheme, it follows it.
48. Section 3 -- whose enforcement SB 1070 effectively mandates
-- COMMENT: "effectively
mandates" is a weasel phrase. "Effectively" mandates means, "does
not mandate." The Complaint earlier asserted that the threat of
individual civil suits would make law officers abandon their best
judgment, and the present language implies the same; but the Executive
will have a very hard time proving this assertion or implication.
through operation of Section
2's alien inspection and verification regime -- demands the arrest and
prosecution of all aliens who do not have certain documents. But
several classes of aliens who are eligible for humanitarian relief are
simply not provided with registration documents while their status is
being adjudicated by the federal government, notwithstanding the
federal government's knowledge that these aliens are present in the
US. SB 1070 thus seeks to criminalize aliens whose presence is
known and accepted by the federal government (at least during the
pendency of their status review) and thereby conflicts with and
otherwise is an obstacle to federal law.
-- COMMENT: It would take
very little for the Executive to issue "papers" to aliens being
evaluated for humanitarian relief. It is unreasonable for the
Executive to refuse to do that little, and at the same time oppose
Arizona's doing anything to provide humanitarian relief for US citizens
49. Additionally, Section
3 is tantamount to a regulation of immigration, in seeking to control
the conditions of an alien's entry and presence in the US without
serving any traditional state police interest.
-- COMMENT: False.
The feds would rather let some aliens run around the country without
documentation, than issue cards so that the aliens' status could be
verified. Instead of arguing with Arizona, the feds should simply
set up a card for all -- then Arizona would not be looking for anything
a legal alien wouldn't have.
Accordingly, Section 3 is
preempted by the federal government's recognized exclusive authority
over the regulation of immigration.
-- COMMENT: It's not the
"federal government" which has control over immigration, it's
Congress. Once again, the Complaint is blurring the distinction
between the federal government in general, and the Executive branch in
Section 4 of SB 1070/ARS 13-2319
50. Section 4 of SB 1070
changed ARS 13-2319 to make it a felony for a person to intentionally
engage in the smuggling of human beings for profit or commercial
purpose. The statute defines smuggling of human beings as the
transportation, procurement of transportation, or use of property by a
person or an entity that knows or has reason to know that the person or
persons transported are not US citizens, permanent resident aliens, or
persons otherwise lawfully in this state, or have attempted to enter,
entered or remained in the US in violation of law.
-- COMMENT: That's a fair statement.
51. ARS 13-2319 is
preempted by federal law. There are several key differences
between federal and Arizona law that demonstrate that Arizona's alien
smuggling prohibition actually regulates conditions of unlawful
presence, not smuggling at all. First, Arizona's law, unlike
federal law, is not limited to transportation "in furtherance" of
unlawful immigration, but instead prohibits the knowing provision of
any commercial transportation services to an alien unlawfully present
in the US.
-- COMMENT: If the
"knowing" requirement is interpreted as knowing "that the alien is
unlawfully present in the US," this problem should disappear.
Second, unlike federal law,
Arizona's alien smuggling law not only criminalizes the conduct of the
transportation provider but has been used, in conjunction with
Arizona's conspiracy statute, to prosecute the unlawfully present alien.
-- COMMENT: "Has been
used"? Not yet it hasn't; this part of the Complaint was
apparently taken from a draft on a different subject.
Third, Arizona's smuggling provision is not targeted at smuggling across the US's international borders.
-- COMMENT: The Complaint
appears to be complaining that Arizona DIDN'T violate the
Constitution. If SB 1070 DID target smuggling across the border,
the Complaint would complain about that too. The Complaint has
set up a situation in which Arizona can neither act, nor not act,
without incurring Executive wrath. That is not the mark of a
reasonable position, it indicates that the Executive is acting without
regard to reason.
As a result of these
differences, Arizona's smuggling prohibition regulates the conditions
of an alien's entry and continued presence in the US. The
differences between Section 4 and federal law convert Arizona's
smuggling prohibitions into a preempted regulation of immigration.
-- COMMENT: Once again,
the brief shows its ignorance of the realities along the sievelike
border. In fact, many, many illegal border crossings are made on
foot; Section 4's language about transportation has no application to
those illegal entries.
smuggling prohibition will result in special, impermissible burdens for
legal aliens, who will predictably be impeded from using commercial
transportation services due to the strictures of Section 4.
Arizona's smuggling prohibition thus conflicts with and otherwise
stands as an obstacle to the full purposes and objectives of Congress
in creating a comprehensive system of penalties for aliens who are
unlawfully present in the US.
-- COMMENT: That last
paragraph is mere nagging. There is no reason for any alien
carrying proper identification to worry at all -- except for those rare
aliens whom the feds process and release without giving them any
Section 5 of SB 1070
52. Section 5 adds two new statutes: ARS 13-2928 and -2929.
53. ARS 13-2928 makes it
a crime for any person who is "unauthorized" and "unlawfully present"
in Arizona to solicit, apply for, or perform work.
54. ARS 13-2928 is
preempted by the comprehensive federal scheme of sanctions related to
the employment of unauthorized aliens. The text, structure,
history, and purpose of the federal scheme reflect an affirmative
decision by Congress to regulate the employment of unlawful aliens by
imposing sanctions on the employer, not on the employee.
Arizona's criminal sanction on unauthorized aliens stands as an
obstacle to the full purposes and objectives of Congress's considered
approach to regulating employment practices concerning unauthorized
aliens, and it conflicts with Congress's decision not to criminalize
such conduct for humanitarian and other reasons. Enforcement of
this new state crime additionally interferes with the comprehensive
system of civil consequences for aliens unlawfully present in the US by
attaching criminal sanctions on the conditions of unlawful presence,
despite an affirmative choice by Congress not to criminalize unlawful
-- COMMENT: A reasonable argument.
55. ARS 13-2929 makes it
a crime for a person committing any criminal offense to (1) "transport
... an alien ... in furtherance of the illegal presence of the alien in
the US, ... if the person knows or recklessly disregards" that the
alien is here illegally; (2) "conceal, harbor or shield ... an alien
from detection ... if the person knows or recklessly disregards the
fact that the alien" is unlawfully present; or (3) "encourage or induce
an alien to come to or reside in this state if the person knows or
recklessly disregards the fact that such ... entering or residing in
this state is or will be in violation of law." This provision
exempts child protective service workers, first responders, and
emergency medical technicians. This provision contains no further
exceptions, even for organizations exempted by federal law from
criminal liability, such as religious organizations which "encourage,
invite, call, allow, or enable" an alien to volunteer as a minister or
-- COMMENT: Why should religious organizations be given special permission to break the law?
56. ARS 13-2929 is
preempted by federal law. It is an attempt to regulate unlawful
entry into the US through the Arizona border -- an attempt from which
states are definitively barred by the Constitution. Additionally,
because the purpose of this law is to deter and prevent the movement of
certain aliens into Arizona, the law restricts interstate
commerce. Enforcement and operation of this state law provision
would therefore conflict and interfere with the federal government's
management of interstate commerce, and would thereby violate Article I,
Section 8 of the Constitution.
-- COMMENT 1: As to vehicular entry along the border, the brief may be right.
-- COMMENT 2: How is traveling from Mexico into Arizona interstate commerce?
Section 6 of SB 1070
57. Section 6 amends a
preexisting Arizona criminal statute (ARS 13-3883) governing when law
enforcement officers can make a warrantless arrest. Section 6
allows the arrest of anyone whom the officer has probable cause to
believe has committed any public offense, in Arizona or another state,
that makes the person removable from the US, and does not require
coordination with DHS to confirm removability.
-- COMMENT: A fair statement.
58. Arizona law
previously allowed for the warrantless arrest of anyone suspected of
having committed a crime in Arizona. Section 6 authorizes
warrantless arrests for crimes committed out of state only if the
officer believes the crime makes the individual removable. Thus,
Section 6 plainly provides an additional means to arrest aliens on the
basis of immigration status.
-- COMMENT: A fair
argument. Arizona could defeat this argument by allowing
warrantless arrests without regard to immigration status, or by not
allowing warrantless arrests for offenses committed out of state.
59. Section 6 makes no
exception for aliens whose removability has already been resolved by
federal authorities, despite the fact that only the federal government
can actually issue removal decisions. Section 6 will therefore
necessarily result in the arrest of aliens based on out-of-state
crimes, even if the criminal and immigration consequences of the
out-of-state crime have already been definitively resolved.
-- COMMENT: It should not
be an impossible technological challenge for federal records to include
accurate information. Or would the Executive prefer to prevent
effective enforcement of immigration law in Arizona?
For that reason, as with
Section 2, Section 6 interferes with the federal government's
enforcement prerogatives and will necessarily impose burdens on lawful
aliens in a manner that conflicts with the purposes and practices of
the federal immigration laws.
-- COMMENT: As so often
before, it's necessary to note that it's not the entire federal system
which is affected by SB 1070, it's only the Executive branch's
assertion of implicit supremacy over the Legislative branch, by
ignoring laws passed by Congress. The Executive's "purposes and
practices" should not be confused with the text of the Legislature's
Also, Section 6 will result in the arrest of aliens whose out-of-state crimes would not give rise to removal proceedings at all.
-- COMMENT: Correct; but
as already noted, Arizona could solve this problem either by allowing
warrantless arrests without regard to immigration status, or by not
allowing warrantless arrests for offenses committed out of state.
Either way, solving this problem with SB 1070 does not require dumping
COMMENT: The remaining sections, 60-68 and the statement of what relief is sought, are formalities and rhetoric.
60. By reason of the
foregoing, defendants' actions have caused and will continue to cause
substantial and irreparable harm to the US for which plaintiff has no
adequate remedy except by this action.
FIRST CAUSE OF ACTION -- VIOLATION OF THE SUPREMACY CLAUSE
61. Paragraphs 1 through 60 are incorporated.
62. Sections 1-6 of SB
1070 represent an impermissible effort by Arizona to establish its own
immigration policy and to directly regulate the immigration status of
aliens. In particular, Sections 1-6 conflict with federal law and
foreign policy, disregard federal policies, interfere with federal
enforcement priorities in areas committed to the discretion of
plaintiff US, and otherwise impede the accomplishment and execution of
the full purposes and objectives of federal law and foreign policy.
63. Sections 1-6 of SB 1070 violate the Supremacy Clause, and are invalid.
SECOND CAUSE OF ACTION -- PREEMPTION UNDER FEDERAL LAW
64. Paragraphs 1 through 63 are incorporated.
65. Sections 1-6 of SB 1070 are preempted by federal law, including 8 USC 1101, et seq., and by US foreign policy.
THIRD CAUSE OF ACTION -- VIOLATION OF THE COMMERCE CLAUSE
66. Plaintiff incorporates paragraphs 1 through 65.
67. Section 5 of SB 1070
(adding ARS 13-2929) restricts the interstate movement of aliens in a
manner that is prohibited by Article One, Section Eight of the
68. Section 5 of SB 1070 (adding ARS 13-2929) violates the Commerce Clause, and is therefore invalid.
PRAYER FOR RELIEF
WHEREFORE, the US respectfully requests the following relief:
1. A declaratory judgment stating that Sections 1-6 of SB 1070 are invalid, null, and void;
2. A preliminary and a
permanent injunction against the State of Arizona, and its officers,
agents, and employees, prohibiting the enforcement of Sections 1-6 of
3. That this Court award the US its costs in this action; and
Amazing. The Executive branch won't enforce immigration laws in
Arizona, and wants Arizona to suffer for trying to take up the
slack. The Complaint has lost all sense of priorities.
4. That this Court award any other relief it deems just and proper.