Judge Susan Bolton’s decision to block most of Arizona’s proposed immigration enforcement law has caused rejoicing among US immigration rights activists and among Latinos who felt targeted by the law, known as SB 1070. But the decision, announced less than 24 hours before the law was scheduled to take effect on July 29, has surprised many legal observers – and not just conservative ones.
In fact, some observers now believe that the higher courts, either the 9th Federal Circuit Court of Appeals, or eventually, the US Supreme Court, will restore at least some parts of SB 1070 that Bolton blocked. Moreover, most of the other 17 states that are itching to pass laws like Arizona’s aren’t likely to be deterred by Bolton’s decision. Having closely watched the Arizona legal drama unfold, some are planning to “go to school” on her ruling and craft more carefully worded laws that courts in their own districts might decide to uphold.
Few observers, even activists, had expected Bolton to rule so sweepingly against Arizona. During one of the two hearings conducted before she ruled, Bolton had demanded to know why Arizona’s attempt to more aggressively enforce current federal laws against illegal immigration was “pre-empted” by this same law. The Justice Department attorney responded that Arizona’s law would pose an “undue burden” on federal immigration resources, and that only the federal government, not a single state, could determine the timing, pace, and volume of immigration enforcement. At the time, Bolton seemed singularly unimpressed with this argument.
But in her ruling, she largely endorsed the Justice Department view.
Some observers believe that Arizona lawyers substantially weakened their case by not providing clearer answers to Judge Bolton’s queries regarding the precise manner in which Arizona planned to determine whether illegal aliens were deportable, and whether it would also hold alien suspects indefinitely until their status could be clarified.
That seemed to open the door to the possibility that legal US residents could be jailed for indeterminate lengths, which clearly bothered Bolton, and was a major factor in her decision not to let Arizona proceed. She also feeared that illegal aliens would be denied an opportunity to appear before a federal judge to have an opportunity to challenge a preliminary deportation finding.
Arizona could have defused these issues, experts say, by one of two means. The state could have agreed to issue a citation to illegal alien suspects that would have required them to appear before a judge, but would have allowed them to go free, pending their hearing. Some illegal aliens might never have appeared, but failure to appear would have resulted in a warrant and made them more summarily deportable, if caught again.
Arizona could also have argued to Bolton that it planned to use the federal database it has installed in its jails that allows for an immediate verification of an alien’s legal status. The database is being used as part of the Obama-backed Secure Communities program, which began in Arizona last December. The database allows the feds – and Arizona – to determine a suspect’s legal status at the time of the arrest, which would make it highly unlikely that those legally in the country would be wrongly detained for prolonged periods.
Bolton may have also erred when she ruled that Arizona could not insist that Arizona residents carry proper identification that would verify their legal status. Bolton suggested that this, too, amounted to undue pressure on legal residents, and that only the federal government, not a state, could impose such a burden. While some observers doubt that current federal law pre-empt states in this fashion, Arizona could have sidestepped the entire issue by dropping “possession of legal identification” from its extensive checklist of items that would cause “reasonable suspicion” that someone was an illegal alien.
Some aliens might slip through,as a result, but based on the other criteria, most probably would not.
Despite Bolton’s strong objections to the core of SB 1070, the judge didn’t block the entire law. She left in tact Arizona’s prohibition against illegal aliens and prospective employers meeting openly to contract for day labor projects, which, depending on how it’s implemented, appears to give Arizona police at least one legal opening to crack down more aggressively on aliens.
Bolton also allowed Arizona to make it a state crime to smuggle or “harbor” illegal aliens. This latter decision has irked a number of critics, who worry that “haboring” could be construed in ways that would allow Arizona police to crack down on aliens who are simply traveling in groups, or on agencies that are seeking to assist illegal aliens with services. Some say Bolton should have found SB 1070’s alien smuggling/harboring ban just as “pre-empted” by federal law as the other provisions she struck down.
Moving forward, Arizona will almost certainly seek an “expedited” appeal of Bolton’s decision by the Ninth Federal Circuit Appeals Court. This is the same court that upheld Arizona’s tough new employer sanctions law in 2008 on the grounds that it was not “pre-empted” by federal law. Some observers believe that Arizona was on stronger legal ground in that case because the enforcement issue dealt with the area of employment – a more traditional state prerogative. In addition, 10 of the 15 judges on the 9th Circuit Appeals Court are, like Bolton, Democratic appointees. Few observers expect the 9th Circuit to overturn Bolton’s decision, in fact.
But the US Supreme Court, under Chief Justice John G. Roberts, a Bush appointee, is an entirely different venue. Last month, right before the Justice Department filed its lawsuit against Arizona, the Roberts court agreed to review the 9th Circuit court’s decision upholding Arizona’s employer sanctions law. That decision relied heavily on an earlier US Supreme Court decision known as De Canas in which then-Chief Justice William Brennan, a staunch liberal, suggested that states were not always strictly bound by federal prerogatives on immigration. If the Roberts Court stays true to De Canas, it may very well find grounds to reverse part or all of Bolton’s recent decision on SB 1070 – in the process re-drawing the boundaries of federal and state immigration policy authority for many years to come.
Stewart J. Lawrence is a Washington, DC-based an immigration policy specialist. He can be reached at firstname.lastname@example.org