On July 28, 2010, the Hon. Susan Bolton, US District Judge for the District of Arizona, issued a preliminary injunction which enjoins enforcement of several key elements of Arizona's controversial immigration law. When any person or entity sues and is claiming that a law is facially unconstitutional, as did the US Government, the person or entity so challenging the law must first establish that there is no possibility that the law can be constitutionally valid. This is a higher hurdle than is required if no facial challenge is made, but an enforcement challenge is claimed. United States v. Salerno 481 US 739 (1987). Judge Bolton found that four of the sections of the bill, commonly referred to as SB 1070, and the most notorious and offensive portions of the bill, were an attempt by the State of Arizona to preempt federal jurisdiction, and thus, at odds with the supremacy clause of the US Constitution. The Court also found that the United States was likely to prevail at trial on this matter, and thus a preliminary injunction was proper.
The portions that are subject to an injunction and will not take effect, at least not for now are:
- A.R.S. 11-1051(B) which requires all Arizona law enforcement officers to make inquiry about a person's immigration status when they have otherwise been lawfully arrested;
- A.R.S. 13-1509 which makes it a crime to fail to carry one's alien registration papers;
- A.R.S. 13-2928(C) which makes it a crime for an unauthorized alien to solicit work;
- A.R.S. 13-3883(A)(5) which authorizes the warrantless arrest of anyone that a police officer suspects has committed a crime that would make them removable from the US.
The procedure going forward normally would be that the Court will eventually schedule a further hearing/trial on this matter, and it is to be expected that the ruling would change very little. The State of Arizona has announced that it will be filing an expedited appeal to the US Circuit Court of Appeals for the 9th Circuit. It is doubtful that the appellate court will interfere in the matter prior to a final ruling from Judge Bolton.
Once a final ruling has been entered, the matter can then be appealed to the 9th Circuit, which is one of the most liberal appellate courts in the nation. The opinion by Judge Bolton is carefully written, with good research and legal analysis to back the opinion. I think it unlikely that the appellate courts will overturn it. If (when) Arizona appeals to the Supreme Court of the US, I think it unlikely that the SCOTUS will accept the case, and then odious parts of the law will be swept into the dust bin of history.
One final note: although it hasn't happened yet, the same group of Nazi's in the Arizona legislature, (they call themselves republicans), have been circulating a bill which would require the withholding of a birth certificate on any child born in Arizona if the parents are not both documented citizens or legally here in this country. Hopefully, the "fiscally responsible" republicans will see this as another waste of taxpayer money, and not try this to as it would fall flat on its unconstitutional face.