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
    http://azleg.gov/alispdfs/council/SB1070-HB2162.PDF

The lawsuit began with the filing of a Complaint in the federal district court for Arizona.  The Complaint is in .pdf form at
    http://www.justice.gov/opa/documents/az-complaint.pdf
and a text version is at
    http://littlebigdog.net/ImmigrationLawsuitAgainstAZ.htm
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 --COMMENT.

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
    mpj@vtc.net

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 executed."

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 that implication.


INTRODUCTION

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 range.
-- 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 competing, objectives.
-- 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 law."
-- 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 enforcement priority.
-- 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 fail.

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 struck down.
-- 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. 2.
-- 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 Congressional laws.

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 suggestions.
-- 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 violence.

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 cases.
-- COMMENT:  This paragraph follows up on the concerns raised by paragraph 17 above.  Let's compare reality to the Complaint's list of "uniquely national interests":
-- -- 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 Mexico.

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 Executive.
-- 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 illegal aliens.

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 enactments.


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 been violated."

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 Legislative branch.

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 immigration laws.
-- 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 immigration.
-- 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 American citizens?

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 driver's license.
-- 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 the Complaint.

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 state interest.
-- 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 won't.
-- 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 happiness.


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 in Arizona.

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 particular.


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.

Additionally, Arizona's 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 identification.


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 presence.
-- 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 missionary.
-- 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 actual enactments.

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 SB 1070.


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 Constitution.
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 SB 1070;
3.  That this Court award the US its costs in this action; and
-- COMMENT:  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.