The Obama administration is apparently ready to throw in the towel in its bid to kill the “papers, please” provision of Arizona's controversial 2010 immigration law.
Legal papers filed by attorneys from both sides disclose they are in talks to resolve outstanding issues on several points of SB 1070. That would involve the state giving up its efforts to enforce provisions of the law dealing with harboring those not in the country legally.
But the Department of Justice would no longer seek to void a requirement that a police officer check the immigration status of those they have stopped if there is “reasonable suspicion” the person is in the country illegally.
The news of the offer came as a surprise to various civil rights groups who are pursuing their own legal challenge of that provision.
But Omar Jadwat of the American Civil Liberties Union said that lawsuit, also pending before U.S. District Court Judge Susan Bolton, will continue, and Linton Joaquin of the National Immigration Law Center, said the claims challengers have go far beyond what the federal government was trying to prove.
In the interim, the controversial section remains in force.
The plan is clearly being considered by Gov. Jan Brewer: Her attorneys signed on to the report to U.S. District Court Judge Susan Bolton.
It's not like the state would give up much in agreeing never to enforce the law making it a state crime to knowingly transport or harbor someone in this country illegally. A federal appellate court, acting on a challenge to that by civil rights groups, already issued an order temporarily blocking enforcement of the measure as unconstitutional, a decision the U.S. Supreme Court refused to disturb.
No one from the governor's office immediately returned repeated calls seeking comment. But Rep. John Kavanagh, R-Fountain Hills, who helped craft and push through the 2010 legislation, said he's not sure the state should go along.
“My gut feeling it it's not a good deal,” he said. And the key, said Kavanagh, is that other lawsuit also playing out in Bolton's court.
“It might be a good deal if all the lawsuits went away,” he said. “But all they're saying is, we'll only have one person shooting at your heart instead of two.”
In a 2010 lawsuit, the Obama administration challenged several provisions of SB 1070.
Two years ago the U.S. Supreme Court voided three of the sections:
- making it a state crime for someone not in this country legally to fail to carry federally issued registration cards;
- making it illegal for an undocumented worker to apply for work in a public place or perform work as an employee or independent contractor in Arizona;
- allowing police make an arrest without a warrant if there is "probable cause'' they committed an offense that makes them removable from the country.
The justices refused to block enforcement of the provision requiring police to check immigration status, specifically rejected arguments by the Obama administration that the mandate illegally infringes on the exclusive right of the federal government to regulate immigration. They concluded there was no evidence that provision would be enforced in a way to violate the rights of individuals.
Justice Anthony Kennedy, writing for the high court, said there are constitutional ways to enforce a law requiring police to check on someone's immigration status. The key, he said, is how long someone is detained.
As an example, he used a situation where someone in Tucson is stopped for jaywalking and police have reason to believe the person is not in this country legally. Kennedy said it will be up to Arizona judges to determine how long that person can be held, after the jaywalking ticket is issued, while that inquiry is made.
Kennedy said that, absent some showing of actual abuse, any move to void the law is premature at best.
While the Department of Justice may not be interested in pursuing the issue, other groups still hope to convince Bolton — and if necessary, the Supreme Court — the provision is discriminatory. Nothing in the 2012 high court ruling precludes them from doing that.
One of those claims is based on the contention that the purpose behind SB 1070 was not to deal with the effects of illegal immigration but instead was motivated by racial bias.
But to prove that, challengers need actual evidence which they hope to find in emails of current and former lawmakers. They specifically are demanding any documents with words like “alien,” “illegals,” “Mexican,” “wetback” or “undocumented,” contending any comments lawmakers were making around the time SB 1070 was adopted are relevant.
The other part of what would be the remaining legal challenge goes to that issue of how long people, stopped for other reasons, are detained beyond that solely to check out their immigration status.
“The issue here is basically whether the law means to Arizona and Arizona officials what the Supreme Court said would be problematic constitutionally,” said Joaquin. And that, he said, can be ascertained by determining the written or unwritten policies of various police agencies.
For example, Joaquin said a police department might read SB 1070 to require officers to hold someone stopped for a traffic violation far beyond the time necessary to write the ticket solely to run a check on immigration status. “That's unconstitutional,” he said.