Experts dissect SB 1070's legality - East Valley Tribune: Arizona

Experts dissect SB 1070's legality

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Posted: Saturday, July 17, 2010 6:00 am | Updated: 5:28 pm, Wed Jul 28, 2010.

The long, hot summer of controversy surrounding Arizona's new immigration law will intensify on Thursday, when a federal judge hears arguments on the highest-profile of seven lawsuits challenging the legislation: a preliminary injunction request by the U.S. Department of Justice.

Legal experts interviewed by the Tribune could offer only educated guesses on the ability of SB 1070 to withstand a constitutional challenge. But each said with certainty: Thursday's hearing, presided over by U.S. District Court Judge Susan Bolton, is one of the first steps in a long legal slog.

"Whatever happens, this is just Round 1," Phoenix attorney Dan Barr said. "It will go to the 9th Circuit Court, then the Supreme Court, which may or may not take the case. ...

"Judge Bolton is going to take whatever time she needs to be as thorough as possible and get it right in her mind. She's not going to be bothered by any deadline. She knows this is going up (to an appeals court) no matter what, and her job is not only to do the legal analysis that needs to be done, but build a full record for the appeals court, and possibly the Supreme Court, to review."

The federal case will be the third time Bolton hears a request to enjoin the law. She has indicated that she might not be able to rule on the injunction request by the time the law takes effect on July 29.

"It's very unlikely she will say anything regarding the injunction until she has had a chance to take a look at everything in front of her," said Evelyn Cruz, director of the Arizona State University College of Law's Immigration Law & Policy Clinic. "We might get a ruling on the injunction quickly, but the claim itself will take a while. There will be briefings, filings, hearings and so on. It will be a drawn-out process."

The Justice Department's lawsuit, filed on July 6, charges that SB 1070 - which requires law enforcement officers, "when practicable" and if "reasonable suspicion" exists, to verify if a person is in the country legally - exceeds the state's authority on immigration enforcement and violates the Constitution's supremacy clause.

Article VI of the Constitution classifies federal law as "the supreme law of the land." Article I, Section 8 gives Congress the power to "establish an uniform Rule of Naturalization."

There are two kinds of constitutional challenges to a law: facial and as-applied. The current federal case is a facial challenge to the legality of SB 1070. An as-applied challenge - for example, if the federal government believes there are equal-protection violations - can be filed if an when the law goes into effect.

Gabriel "Jack" Chin, a professor at University of Arizona's law school, said that he cannot recall a case where the Supreme Court has upheld a state immigration provision.

Among municipal and state legislation that has not survived in the federal courts:

• Hines vs. Davidowitz (1941), in which the Supreme Court overturned a Pennsylvania law that mandated immigrants to carry an alien identification card. The justices determined that the state law was superseded by the federal Alien Registration Act.

• In perhaps the most famous case, a judge in December 1994 issued a permanent injunction against Proposition 187 in California, stating that immigration enforcement is exclusive to the federal government. The appeals process was dropped before the Ninth Circuit Court could hear the case.

• Citing federal exclusivity, a judge struck down a Hazelton, Penn., ordinance punishing landlords who rent to illegal immigrants and employers who hire them. Last month, Fremont, Neb., voters approved a similar ordinance, and the American Civil Liberties Union has promised to file a lawsuit to keep it from going into effect on July 29.

"My suspicion is, if I had to guess, that the district court will stop (SB 1070) from taking effect," Chin said. "If the district court does not do it, the 9th Circuit will. Federal enforcement of immigration law is so old and strong and grounded on such powerful governmental principles that I would be very surprised if a district judge decides to go in a different direction.

"Essentially, what it will mean is that a district judge is saying that the federal government might believe there are foreign policy implications, but I'm a district judge in Phoenix, and I know better, and there aren't. I can't imagine a district judge saying that."

Arizona immigration law defenders argue that the legislation will be enforced in concert with federal law.

"No official or agency of this state or a county, city, town or other political subdivision of this state may adopt a policy that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law," SB 1070 reads.

Cruz thinks the federal supremacy will ultimately apply in the Arizona case, but believes that some provisions of SB 1070 could stand.

"Both sides have valid arguments to make," Cruz said. "The state can say it has a right to pass laws that deal with public safety, and that all statutes ultimately deal with public safety. ...

"Courts have to go on the case law that is available, and sometimes, opinions differ on case law. Sometimes, there isn't a clear-cut answer. So, my gut feeling is some provisions might survive."

Among the provisions that could withstand a challenge, Cruz said, is one prohibiting someone in a vehicle that is stopped on a street from picking up and transporting passengers to work at a different location. She said a valid case can be made that is a traffic law that state and local authorities should be able to enforce.

Attorney General Eric Holder has indicated that a second federal suit could be filed against Arizona if there is evidence of racial profiling. However, Chin said that U.S. immigration laws - upheld by the Supreme Court - allow for exactly that.

He cited United States vs. Brignoni-Ponce (1975), a case in which the Supreme Court stated that "the likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor" in the U.S. Border Patrol's authority to pull over vehicles to check for occupants' immigration status.

That sentiment was echoed in State vs. Graciano (1982), in which the Arizona Supreme Court ruled that "enforcement of immigration laws often involves a relevant consideration of ethnic factors."

The profiling aspect will be moot, though, if SB 1070 cannot withstand a facial challenge.

"That's where this case gets won or lost," Barr said.

Bolton could enjoin the statute while preparing her ruling, or indicate that she will allow the law to take effect before she decides on its legality. If the latter happens, Barr said, the Justice Department will likely request a stay to prevent the law from going into effect.

The decision will likely be appealed to the 9th Circuit U.S. Court in San Francisco. The Supreme Court would be the next, and final, destination.

"This case is so emotionally and politically charged," Chin said, "that I can't believe both sides are not going to explore all avenues available for relief."

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