July 29th, 2010 by Kevin
At the 11th hour of Arizona\’s SB1070 taking effect, the Obama Administration brought the state of Arizona to court to block it\’s enforcement. Judge Susan Bolton subsequently issued a preliminary injunction to prevent the enforcement of certain provisions of the law. Open borders activists have hailed this as a great victory while border enforcement activists have criticized the injunction. So let\’s take a look at what exactly all happened today.
First of all those hoping to see the entire SB1070 tossed out, not only did that not happen today but it\’s not going to happen as SB1070 includes a severability clause, which means that if an invalid portion can be separated from the rest, it shall be toss out while the rest of the bill remains in place. So let\’s set that aside right now.
The claim of the Obama Administration was that \”the power to regulate immigration is vested exclusively in the federal government, and that the provisions of S.B. 1070 are therefore preempted by federal law\” and they sought a preliminary injunction to block it\’s enforcement. So what standard do we need to meet for that?
A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.
So how did that work out for them?? Well for most of the bill the Judge decided that the Obama Administration was not likely to succeed on the merits of the challenge. But there were four provisions that she did rule were likely to succeed on the merits in showing that those sections are preempted by federal law.
- Portion of Section 2 – requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person
- Section 3 – creating a crime for the failure to apply for or carry alien registration papers
- Portion of Section 5 – creating a crime for an unauthorized alien to solicit, apply for, or perform work
- Section 6 – authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States
So why were these blocked? Well essentially it comes down to the interpretation of the specific wording of some of the sentences in these sections. Which if you follow strictly to the letter of each sentence in isolation, suggests that law enforcement would have to verify the immigration status of every person they had even the most basic contact with, even if they knew they were a US citizen. Obviously this would quickly overwhelm the Federal Government with requests and therefore would impede upon the Federal Government\’s ability to perform it\’s immigration enforcement duties.
So what\’s the direct impact of this injunction? Well let\’s take a look at those provisions that were blocked.
Well the blocked portion of Section 2 pretty much has no impact, because even though it was the heart of SB 1070, it was actually MORE restrictive than federal law. According to the SCOTUS ruling in Muehler vs Mena (2005), officers don\’t even need reasonable suspicion to question a person regarding their immigration status. So actually this preliminary injunction increases the ability of local law enforcement to enforce immigration laws.
As far as Section 3 goes, it doesn\’t matter as this was already a federal crime (8 USCS 1304(a) and 1306(e)), so nothing changes by blocking this portion.
Portion of Section 5, well this is already covered by a variety of state and federal laws, including the Immigration Reform and Control Act of 1986.
And finally Section 6, this is already covered by Arizona law. In fact the training materials for law enforcement states that this provision does not appear to change Arizona law. Therefore repealing it basically does nothing.
So for those ranting and raving about this preliminary injunction, please understand that this has virtually no impact on the ability of Arizona law enforcement to do their job. And this is just the start of the case, as Arizona can still argument for the merit of one or more of these provisions. Moreover when you consider the political implications, as I will tomorrow, this is a win-win situation for border enforcement no matter how this turns out.