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Wednesday, July 28, 2010

Arizona Law Upheld In Part - Order and Analysis Here (Update: Strikes Most Key Provisions)

The Court in Arizona has upheld the Arizona immigration law in part.

Here is how The Wall Street Journal characterizes the holding:
A judge has blocked the most controversial sections of Arizona's new immigration law from taking effect Thursday, handing a major legal victory to opponents of the crackdown.

The law will still take effect Thursday, but without many of the provisions that angered opponents—including sections that required officers to check a person's immigration status while enforcing other laws. The judge also put on hold a part of the law that required immigrants to carry their papers at all times and made it illegal for undocumented workers to solicit employment in public places.
The decision was a surprise to me in that it struck the provision -- which was most controversial -- as to checking immigration status of persons already arrested or stopped for some other offense if there were a reasonable suspicion that the person was in the country illegally.

In rejecting the provision as to checking the status of persons arrested, the Judge found that the legislative language, which had been adjusted by amendment, was not effective (at pp. 14-15):
The Court first addresses the second sentence of Section 2(B): “Any person who is arrested shall have the person’s immigration status determined before the person is released.”

Arizona advances that the proper interpretation of this sentence is “that only where a reasonable suspicion exists that a person arrested is an alien and is unlawfully present in the United States must the person’s immigration status be determined before the person is released.” (Defs.’ Resp. to Pl.’s Mot. (“Defs.’ Resp.”) at 10.) Arizona goes on to state, “[T]he Arizona Legislature could not have intended to compel Arizona’s law enforcement officers to determine and verify the immigration status of every single person arrested – even for United States citizens and when there is absolutely no reason to believe the person is unlawfully present in the country.” (Id.)

The Court cannot interpret this provision as Arizona suggests. Before the passage of H.B. 2162, the first sentence of Section 2(B) of the original S.B. 1070 began, “For any lawful contact” rather than “For any lawful stop, detention or arrest.” (Compare original S.B. 1070 § 2(B) with H.B. 2162 § 3(B).) The second sentence w s identical in the original version and as modified by H.B. 2162. It is not a logical interpretation of the Arizona Legislature’s intent to state that it originally intended the first two sentences of Section 2(B) to be read as Section 2(B) are clearly independent of one another. Therefore, it does not follow logically that by changing “any lawful contact” to “any lawful stop, detention or arrest” in the first sentence, the Arizona Legislature intended to alter the meaning of the second sentence in any way. If that had been the Legislature’s intent, it could easily have modified the second sentence accordingly."
The result of this statutory interpretation was that the Court found the procedure -- as written -- to interfere with the federal immigration scheme:
Thus, an increase in the number of requests for determinations of immigration status, such as is likely to result from the mandatory requirement that Arizona law enforcement officials and agencies check the immigration status of any person who is arrested, will divert resources from the federal government’s other responsibilities and priorities.
The Court also opined on potential 4th Amendment issues with the law, and used that as a second basis for the decision (at p. 16):
Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully-present aliens because their liberty will be restricted while their status is checked. Given the large number of people who are technically “arrested” but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification.
Similar reasoning was used in striking the provisions as to status checks during stops (short of arrest).

The decision has to be viewed as a near complete victory for opponents of the law, as it restricts the state from routine and compulsory checks of immigration status as a matter of legislative mandate.

The decision would not, as I read it, prevent police from checking immigration status in a particular case, but would prevent a statewide system to do so.

The result of the decision will be to have a chilling effect on law enforcement officers who, in the absense of the law, would have checked immigration status based on reasonable suspicion anyway. Enforcement of immigration laws in Arizona, as a result of the decision, will be even more difficult than prior to S.B. 1070.

The only portions of the law [added: other than those not specifically challenged by the federal government, see pp. 2-3] upheld were:
A.R.S. § 13-2929: creating a separate crime for a person in violation of a criminal offense to transport or harbor an unlawfully present alien or encourage or induce an unlawfully present alien to come to or live in Arizona
and
A.R.S. § 28-3511: amending the provisions for the removal or impoundment of a vehicle to permit impoundment of vehicles used in the transporting or harboring of unlawfully present aliens
[Note to readers: The analysis above has been adjusted from the original as time permitted a more complete reading of the decision]

Update: My thoughts on the result, Helplessness and Anarchy

U.S. v. Arizona - Order on Motion for Preliminary Injunction
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47 comments:

  1. So if states can not enforce federal law (if I'm reading this right?) does that in turn mean that ObamaCare is unenforceable as well, at least from the state level?

    Obviously there will be more trials and hearings etc but is that not the precedent set here at least?

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  2. So, in violation of current federal law requiring aliens to carry their immigration documents on them at all times,this judge now says they don't have to? What a fool.

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  3. @BloodSpite - The IRS will enforce Obamacare.

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  4. My question to you, Professor Jacobson, is whether the State of Arizona will appeal, and if so, what your impression is of the likelihood the State will prevail.

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  5. I expect a lot of ranting and raving about this ruling, amounting to nothing. Those who supported the law before could have taken actions to prevent the federal suit but did not. Ranting and raving in echo chambers, waving loopy signs, and all the rest had no impact. Taking effective action - what I proposed a few weeks ago - could have put enough pressure on the feds that they might have felt compelled to withdraw the suit.

    Instead of continuing to engage in the same activities - activities that have been proven not to work - help me oppose illegal immigration in smart and highly effective ways. Even if you can't do one of those you can still send that list to your friends.

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  6. BTW, you got a mention at AoSHQ, Prof.

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  7. @Phoenix, added to post at end to answer your question.

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  8. I noticed that an attendant statement to the decision cited the undesirability of a "patchwork of state and local" laws. Does this decision have any bearing on the legality of so-called "sanctuary cities", or can those just continue to be conveniently ignored?

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  9. I understand the IRS is to enforce it, however it takes a degree of cooperation at the state level, does it not?

    IE if a state can not enforce Federal Law, can the states now say that their residency is exempt from said health bill?

    Moot argument I'm sure but I am curious as I know a lot of these type ruling set precedence for future ruling

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  10. It has never been shown that anything proposed by LoneWacko so much as approachees "smart" or "highly effective". Quite the opposite, actually, given that he can't quantifiably demonstrate the success of his own methods.

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  11. "Thus, an increase in the number of requests for determinations of immigration status, ... will divert resources from the federal government’s other responsibilities and priorities."

    I don't know anything about the law but common sense tells me that this section is pure BS.

    The government's allocation of resources is a policy matter. This seems to say that, if policy changed and the federal government decided to allocate as many resources as needed to immigration enforcement, then the law would become valid or at least this objection to the law would be removed. And that doesn't make any sense. If law is subordinate to policy then there is no law (And no freedom shortly after the law is gone).

    That the ruling is so transparently illogical tells me that the judge was trying to get the result he wanted and really didn't care about the law.

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  12. The judge has a problem with the following sentence:

    “Any person who is arrested shall have the person’s immigration status determined before the person is released.”


    If that is inappropriate, wouldn't it also be inappropriate to require the police to check whether there are any outstanding federal arrest warrants before releasing an arrestee?

    If an influx of immigration checks is an undue burden due to a lack of resources, what other crime or violation reporting should be halted due to a lack of resources by the federal government? I heard the SEC is understaffed. Should we not report a Ponzi scheme if we see one?

    The judge insists that the above sentence be interpreted separately from the first sentence of the statutory provision, but then proceeds to strike the entire provision. Shouldn't she have stricken just that sentence, if indeed it stands alone? Personally, I think her parsing of the statute is a little too clever by half.

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  13. what i get from this is that crimes sahll not be prosecuted, and the law not enforced if the result is costly.

    this somehow appeals to a deficit friendly administration?

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  14. Here's hoping that Arizona chooses to defy Obama's Federales, the same way Jindal should have over protecting his coast. The tactic would work if each governor made a huge stink about it, with a statewide address and perhaps some dramatic showdown.

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  15. I dunno Eplumee. I'd say forcing the Federal Government to take you to court in order to stop you from enacting a law is a pretty dramatic show down.

    The question, in my eyes, is in this fight or flight situation how will Brewer and the state of AZ react?

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  16. Hopefully this will go to the SCOTUS before any of the 5 sane members step down.

    Or perhaps it is time for the States to start taking deliberate steps to not enforce mandates from leftists judges. Play their game, take the steps as dictated by state law and let them sue up to SCOTUS.

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  17. Mr. Jacobson,

    What if a person, arrested in Arizona, determined to be illegal alien, is sent to an interstate border, such as New mexico, Colorado, Utah, Nevada, and California ? Would that violate federal law ?

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  18. So in discovery will the feds be asked to describe the "Federal Immigration Scheme"?

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  19. A perfectly insane parsing decision from a judge appointed by a President who quibbled on the meaning of the word 'is'. Can Arizona drivers refuse to give their driver's licenses to police officers because that would be an inquiry into the illegal immigration status of the drivers?
    Since any inquiry whether based upon reasonable suspicion or not is enjoined, Arizona law enforcement will not be able to ask truckloads of immigrants coming into the state or traveling through the state, their immigration status.
    The only good point of this decision is that it will fire up the anti democrap forces as yet another judicial activist decision by a liberal judge.

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  20. The "rule of law" - is now one more step into the conversion of the "rule of laws that the politicians can enforce against a certain person or group at a particular time". Thus, it's not really a rule of law at all but a tool that those in power (judges, dept of justice, DA's, Presidents) of any party can use as needed to suit their needs.

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  21. "Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully-present aliens because their liberty will be restricted while their status is checked. Given the large number of people who are technically “arrested” but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification."


    What about drunk-driving roadblocks? Do they not restrict my liberty WITHOUT CAUSE? Yet the supremes said that's OK. So, Ms. Bolton, think you can delay the appeal until the 5th column (sorry, I meant liberal) is appointed?

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  22. "Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully-present aliens because their liberty will be restricted while their status is checked. Given the large number of people who are technically “arrested” but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification."


    What about drunk-driving roadblocks? Do they not restrict my liberty WITHOUT CAUSE? Yet the supremes said that's OK. So, Ms. Bolton, think you can delay the appeal until the 5th column (sorry, I meant liberal) is appointed?

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  23. This is good news, politically. Andrew McCarthy has it right on NRO:

    However this ruling came out, it was only going to be the first round. Appeal is certain. But the gleeful Left may want to put away the party hats. This decision is going to anger most of the country. The upshot of it is to tell Americans that if they want the immigration laws enforced, they are going to need a president willing to do it, a Congress willing to make clear that the federal government has no interest in preempting state enforcement, and the selection of judges who will not invent novel legal theories to frustrate enforcement. They are not going to get that from the Obama/Reid/Pelosi Democrats.

    I want to keep this battle going until November.

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  24. Regardless of the legal interpretation, the amnesty/open borders crowd has succeeded in getting SB 1070 bogged down in court. That is all that they want.

    It matters little to them today what the ultimate legal outcome will be. Interminable litigation will allow the political process to work it's way to amnesty while these illegals are still here and voting.

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  25. Imagine that - the citizens of a state don't have ANY influence over regulating a foreign invasion that threatens the life and livelihood of its citizens.

    Yeah, I'm sure that's what the states had in mind when they created a federal goverment with severely restricted, carefully enumerated powers...and why the smaller states insisted in the Electoral College and why the States insisted on Senators being appointed by State Legislatures.....and I'm *sure* that's what the Tenth Amendment is all about. Because they wanted an all powerful bureaucracy that would steal their liberty.

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  26. So, to follow the logic of the ruling, this then means that any state (or local) law that results in further burdens on the Federal government is unconstitutional. So a state law that requires federal background checks of, say, an applicant for a concealed carry permit would be unconstitutional.

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  27. All I know is that this ruling will not go away so easily. Remember Sheriff Joe Arpaio is out there enforcing the very law that that judge struck down. Also, if the judge only has a problem with that one sentence, why not just pass another bill that rewords the sentence to make it clearer as to the provision for checking legal status?

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  28. The is not a ruling that strikes down the law ...
    It temporarily puts it on hold until a full trial occurs ...

    there is no striking down ...

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  29. Reading this comment section reminds me how much Conservatives really care about erring on the side of liberty. They like to err on the side of liberty only when it directly effects their racial or class lines.

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  30. "...The judge also put on hold a part of the law that required immigrants to carry their papers at all times ..."

    Whaaaaaaaat!!!!???

    What about 8 USC Sec. 1304 (e)? Is this suddenly no longer operative?

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  31. Mr. Jacobson;

    It would seem then, that Arizona has now been declared a "Sanctuary State" by order of the US Federal District Court.

    A few more steps up the court system, and then it seems the only way for Arizona to legally keep illegal immigrants to the USA out of its territory would be to secede from the USA.

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  32. @TheGhost - the Judge ruled as a matter of law based on the wording of the statute. A trial will not change the law or the statute, so it is done in the trial court.

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  33. "They like to err on the side of liberty only when it directly effects their racial or class lines."

    Huh?

    That's complete gibberish. Do we have laws or do we not? Do we expect them to be enforced or do we not? Class or race have nothing to do with it.

    If you don't like our immigration laws, petition to have them changed. Do not petition to have them left unchanged but unenforced; that's a recipe for selective enforcement which is, bluntly, tyranny.

    You've never actually listened to the arguments of the people you so blithely call racist, have you? If you have, have you taken them at their word for what they're saying, or simply projected a motivation you favor upon them?

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  34. I've read that in the 1990s there were a number of court decisions affirming the ability of State Police to arrest illegal aliens and turn them over to ICE officials. Does this ruling overturn the legal precident set in those cases? e.g. United States vs. Vasquez Alvarez 176 F.3d 1294.

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  35. It would appear as I understand it that the judge ruled policy trumps statute. Therefore the executive branch is now the final legislative authority? Can the judge be this dense? Arizona might as well go for broke and appeal this ruling directly to the Supreme Court. There is still the matter of the federal government levying an un-aportioned tax on Arizona if its policy on illegal immigration is now the final law of the land and the matter of the government's failure to protect Arizona from invasion.

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  36. The argument that state/local LEOs can't take notice of violations of Fed laws, and refer the violators to the appropriate Fed agency, is absurd. I can demonstrate the absurdity thus:

    Suppose while POTUS is making an appearance, a state trooper, county deputy, or local police officer happens to notice someone acting strangely. He observes further, and suspects that the person in question may have somehow gotten a weapon past the perimeter security, and is about to use it to violate 18 USC 1751. Does anyone seriously think that the cop in question is Constitutionally forbidden to interfere in this Federal matter?

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  37. It's worth considering who's side those like "Brett" (real name Aaron?) are on. Review the tips at the link in my first comment; all of those are objectively good ideas. Yet, "Brett" is trying to dissuade you from using objectively good ideas that could help you, and simply because he doesn't like the comments I've left. Is "Brett" (whose profile says he follows thepaintingcorps.blogspot.com ) on your side, or on the side of illegal immigration supporters?

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  38. Your legal analysis confuses me. Where do you see anything "upheld" or "struck down" in this? It's a preliminary injunction. The judge didn't uphold anything. She simply enjoined major parts of the law from going into effect, pending resolution of the case.

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  39. So state and local cooperation with ICE under 287g and Safe Cities initiative is not constructional nor are the joint drug strike forces. This could open up Pandora's box. Many state laws follow federal laws and they cooperate. A less than brilliant ruling.

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  40. Troll alert: Frederick.

    Professor, what was your final decision on allowing trolls on comment threads? Just wondering.....

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  41. i'm with 'phoenix' on this one: federal law says legal immigrants must carry their i.d. at all times..this judge says that, in arizona at least, they do not have to. maybe i'm just a little thick, but how is that supposed to work?

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  42. If they're "objectively good ideas", LoneWacko, then it should be trivial for you to demonstrate, empirically, their effectiveness.

    You've never been able to do so. Not once, after at least five years of exhorting people to take your suggestions and run with them. You've steadfastly refused to do something as simple as follow your own advice and produce a YouTube video of yourself aggressively questioning an amnesty supporter; never mind show that the clip had some discernable effect on the political conversation.

    The simple reality is that you're a crank and a blowhard whose sole contribution to the immigration debate has been to whine endlessly that other people have failed to properly appreciate your genius. And when someone like me comes along to point this out, you resort to pathetic smears -- as if only a supporter of illegal immigration could possibly be critical of your ideas.

    And yes, I read The Painting Corps. It's a hobby blog which has absolutely nothing to do with immigration, illegal or otherwise. How bizarre and nefarious that anybody might have other interests besides illegal immigration!

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  43. The picture I have is that police were and are free to check immigration status after an arrest. However, just because someone is arrested is not reasonable basis to believe they are an illegal immigrant, and you can't have a state law requiring police to investigate persons when there is no reasonable basis for suspicion of a crime. In other words, the judge ruled this is still America, commenters here notwithstanding...amazing how many people are in favor of freedom, except for people they disapprove of.

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  44. CurmudgeonlyTroll said:

    "However, just because someone is arrested is not reasonable basis to believe they are an illegal immigrant, and you can't have a state law requiring police to investigate persons when there is no reasonable basis for suspicion of a crime."

    Once someone is under arrest, I don't think you need any "reasonable basis" for checking to see if the arrestee is wanted for any other reason. I think it is common practice for police to check for outstanding warrants before releasing a person. If a person is arrested for a B&E in Arizona, the AZ police would look to see if he was wanted anywhere else before releasing him on bail. When they check, they might find he is wanted for murder in New York. The police in Arizona wouldn't have a "reasonable basis" for believing he was wanted for murder, but it wouldn't be unconstitutional for them to check. I don't see how checking immigration status is any different.

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  45. Any members of the House offering articles of impeachment for that judgette yet?:

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