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Bar News - September 17, 2010

Immigration Law: The Grand Chasm State: Immigration, Litigation and a Divided Nation


Ronald L. Abramson
With a stroke of her official pen on April 23, 2010, Arizona Governor Jan Brewer single-handedly brought the issue of immigration enforcement and the need for national immigration reform back to the forefront of national discourse. Having reached a crescendo in 2006 and again in 2007, comprehensive immigration reform subsequently fell into the shadows cast by national spotlights on a Presidential election, a national recession, health-care reform, financial reform and a new wave of conservative political activism in the guise of the Tea Party.

The Arizona law, known as SB 1070 or the "Support Our Law Enforcement and Safe Neighborhoods Act," was slated to go into effect on July 29, 2010. However, the law is the subject of no fewer than six federal lawsuits seeking to prevent its implementation on constitutional grounds.

Both the law itself and the considerable rhetoric from all sides raise a number of issues – including political, social, ethical and, of course, legal. While all (or at least most) of these questions may merit profound examination, the principal playing field upon which the raging debate is playing out at the moment is in the courts, and therefore such is the focus of this article.

What the Law Says

Controversial topics often serve as breeding grounds for misinformation. The public dialogue about what SB 1070 does and does not say may tend to stray from the four-corners’ content of the legislation itself. The law is replete with references to other laws and regulations, but essentially establishes three somewhat novel thematic developments which apply in Arizona and thus govern the professional mandates of Arizona state law enforcement officials, as follows:
  1. It is a state crime to be in Arizona without proper immigration authorization.
  2. Arizona law enforcement agencies have the authority to enforce both federal and Arizona state immigration laws.
  3. [It] creates a state-based mechanism by which to enforce federal laws against illegal immigration which are already on the books.
Much of the pre-passage commentary related to the oft-expressed concern that the law would result in the wide-scale harassment of Arizona’s Hispanic/Latino population (which the US Census Bureau lists as over 30 percent of the state’s population, twice the national average), largely as a result of the practice known as racial "profiling." The drafters and proponents of SB 1070 have sought to address concerns about possible profiling and discriminatory application of the law. In fact, the April 23 signing came on the heels of two key amendments to the original version of SB 1070. Specifically, legislators removed the option conferred upon law enforcement officials to use race, ethnicity or national origin as a factor in determining whether there is "reasonable suspicion" to believe that someone is in the United States illegally. In addition, a second change narrowed the circumstances under which police may question someone in furtherance of the law’s mandate, amending a provision which allowed officials to inquire as part of any "lawful contact" to require instead a "lawful stop, detention or arrest."

An immigration rally in New York City. (Flickr: Bosstweed)
Notwithstanding the above-cited amendments, some analysts and commentators believe that the current law still allows for discriminatory and unconstitutional investigative tactics. They note the following clause contained within SB 1070:

A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not solely consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the Unites States or Arizona constitution.

The underscored section, which equivocates on what otherwise reads as a clear anti-discrimination directive, creates wiggle room with respect to institutionalized practices which could be construed as discriminatory. As observed by noted University of Arizona Law Professor Gabriel "Jack" Chin, a 1982 Arizona Supreme Court decision (State v. Graciano) and a 1975 United States Supreme Court Case (U.S. v. Brignoni-Ponce), both of which "authorize consideration of appearance, [such as] Mexican ancestry in the enforcement of immigration law." As noted below, however, challenges to the law focus less on discrimination concerns than on the appropriate role of states – if any - when it comes to enforcing US immigration law.

Pending Litigation

Lawsuits challenging the constitutionality of SB 1070 began about the time that the ink on Gov. Brewer’s signature dried.

In a seemingly unprecedented action, 19-year veteran Phoenix police officer David Salgado sued the state for placing him in the untenable position of being vulnerable to lawsuits whether he enforces the law (stemming from possible allegations of racial profiling) or not (stemming from a provision in SB 1070 which allows citizens to sue law enforcement officials for failure to enforce the law to its fullest extent). Tucson police patrolman Martin Escobar also filed suit, claiming that SB 1070 compromises his ability to execute his sworn duties in that it will have a chilling effect on the immigrant community’s willingness to cooperate with law enforcement officials.

Yet another landmark legal maneuver occurred on June 23, 2010, when the Mexican government weighed in on the matter, arguing that SB 1070 is unconstitutional (under US law) and would damage relations between Mexico and the United States. In its written filings and public statements, the Mexican government also voiced its concern that SB 1070 would lead to unlawful discrimination against Mexican citizens.

Judge Susan Bolton’s Input

However, the first major litigation bombshell relating to the flurry of legal activity at the U.S. District courthouse in Phoenix occurred on Wednesday, July 28, 2010, the day before SB 1070 was to go into effect. In response to a lawsuit brought by the United States Department of Justice, US District Court Judge Susan Bolton held significant portions of the law invalid. Specifically, Judge Bolton invalidated the sections of the law which allow police officers to check a person’s immigration status while enforcing other laws, requiring noncitizens to prove that they are authorized to be in the country, resulting in state criminal charges if they cannot. She did allow certain other provisions to take effect on July 29, but both sides agree that SB 1070 now stands largely eviscerated by the court’s preliminary injunction.

At its essence, the challenges to SB 1070 stem from the doctrine of preemption, whereby federal law trumps state law on matters reserved to the federal government as set forth in the United States Constitution. Judge Bolton found authority for the Government’s claims in the Supremacy Clause, as well as finding additional support for immigration legislation and enforcement to be the exclusive province of the federal government, including the Commerce Clause, the Naturalization Clause, and the Migration and Importation Clause.

In a time of great flux on the issue, the only certainty is that appeals of Judge Bolton’s preliminary injunction, and – ultimately – of her decision on the merits of the case, will follow. This should prove one of the most interesting civic legal battles of the age.

What Does This Mean to New Hampshire"

Prior to Judge Bolton’s issuing the July 28 injunction, approximately 20 states were thought to be considering enactment of provisions similar to SB 1070. The issue has also become a bellwether in primary campaigns for state and federal office. Whatever fate SB1070 suffers in the courts, its principles seem to have resonated in the court of public opinion.

While New Hampshire is not on the current list of aspiring SB 1070 imitators, the state is no stranger to the public fury which arises when states take immigration enforcement into their own hands. Dating back to 2005, when New Ipswich Police Chief Garrett Chamberlin thought to use New Hampshire’s basic criminal trespassing statute to criminalize the presence of the undocumented in his town. The Hudson police soon followed New Ipswich’s lead. While Chief Chamberlin found himself in the midst of minor celebrity (feted by like-minded politicians and pundits), New Hampshire District Court Judge L. Phillip Runyon invalidated the practice, citing the preemption doctrine. In the immediate aftermath of that decision, former NH Attorney General (and current US Senate candidate) Kelly Ayotte wrote that, "Having carefully examined the Court’s decision and the relevant case law, this office has determined that there is an insufficient basis for appeal. Accordingly, New Hampshire law enforcement officials should not make future arrests for criminal trespassing based solely on the defendants’ immigration status."

Though the trajectory of SB 1070 as it winds through the courts will grab many observers’ attention, New Hampshire seems to have learned a lesson from the events of five years ago. Be it due to a relatively small immigrant population, or a reflection of good Yankee common sense, passage of an SB 1070-style revision to NH’s statutes appears unlikely in the foreseeable future.

Public Reaction and the Future of Immigration Reform

At its essence, the public reaction to the passage of SB 1070 and the ensuing maelstrom mirrors Americans’ feelings about the state of the country’s immigration system. According the Pew Foundation, 73 percent of respondents to a recent poll say they approve of requiring people to produce documents verifying their immigration status if police ask for them, while 67 percent approve of allowing police to detain anyone who cannot verify their legal status and 62 percent approve of allowing police to question people they think may be in the country illegally. Interestingly, the approval rating drops to 59 percent when respondents were asked whether, all things considered, they approve of Arizona’s new illegal immigration law; 32 percent of those surveyed disapprove.

Gov. Brewer – who has decades of experience in state government but no legal degree or prior legal experience, per se – has publicly declared that Arizona will successfully defend itself against any and all lawsuits challenging SB 1070. Politicians seeking offices from local representative to governor to US Senator are gauging the impact on the issue in terms of crafting campaign strategies.

Immigration reform carries about it an air of inevitability. However, in a time of economic instability and political volatility, a well-crafted, bipartisan comprehensive reform plan is unlikely. The eventual fate of SB 1070 in the courts, as well as the public’s reaction to it, will surely help chart a course for resolving this most pressing national problem.

Ronald L. Abramson is the founder and principal of Abramson Immigration Solutions.

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