Wednesday, July 28, 2010

Freedom 1, Arizona 0

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.
In all these cases, the judge found that federal law preempts the Arizona law and therefore, the statute is unconstitutional in the parts listed above. There were several sections which Judge Bolton left intact. She refused to invalidate the entire law, finding that there is a "savings" clause which specified that if parts were declared invalid, the other parts would remain intact. Some of the clauses which she left intact were, for example, sections which amended Arizona law relating to human smuggling, Arizona law dealing with the hiring of undocumented workers, and a new law which makes it illegal to solicit workers from a vehicle.

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.


  1. An interesting part of this is the reason the judge overturned it and what she did not do. Her statements were that checking every arrested person would burden the federal immigration official to the point they could not do their job. She did not say the police could not check the status of arrested people only that the state could not require them to check all arrested persons. Also she left intact the provisions against human trafficing, picking up day laborers, and hiring illegals. The one part about papers she said created additional penalties for a federal law and therefore changed the law. I found it interesting that was the only part she said infringed on federal authority and she even said that the checking status complimented federal law but the immigration authorities were not equipped to handle that many requests for status.

    And ToE, when you start namecalling it really makes it look like you have no sensible argument.

  2. I have seen news coverage which indicates that the border incursions by illegal immigrants is actually down. Certainly deportations of illegal immigrants is at an ALL-TIME high under Obama.

    One of my objections to the views advanced by conservatives is that for people who make a point about claiming they desire freedom, they tend to be more restrictive of those very primary freedoms not less.

    They claim a desire for smaller and less intrusive government - but make the biggest expansions of it and the most inappropriate expansions as well.

    They claim the greatest desire for fiscal responsibility -- but have consistently been the least responsible fiscally.

    This 'paper's please' legislation has been an example of all three.

    Kudos, ToE, on your analysis of today's injunction.

    Bolton is no Judge Land, who wrote decisions re Orly Taitz that are as entertaining as they are serious judicial documents. But the decision seems thought

  3. whoops! a send-to-soon! the decision seems thoughtful, and well-reasoned.

  4. Tuck,

    You're absolutely right. She based most of her objections to the offending paragraphs and/or statutes on provisions that it is a federal supremacy issue. Its a federal supremacy issue because the US Government alone decides how to spend its resources, and a state can't over ride federal concerns. Let look at what she actually found on the 4 offending sections:
    1) Judge Bolton found that the section required that law enforcement ascertain the immigration status of ALL persons who were lawfully stopped, detained or arrested.She found this creates an undue burden on lawful immigrants. Hines v. Davidowitz 312 US 52 (1941) The court also recognized the serious potential 4th amendment problem.
    2) She found that the offense of failing to carry papers was a direct interference with federal law, and thus was preempted. (Opinion at P. 23)
    3) In sanctioning unauthorized aliens looking for work, she specifically found that Congress had rejected the idea of penalizing would-be employees, and thus, it violates the federal immigration scheme and is preempted.
    4) She found that the last section, which grants a warrantless arrest when an officer believes the person has committed a crime in another state which makes them removable from the US, she found that this exceeds the authority of an ordinary police officer, and usurps the power granted to immigration judges and Courts of Appeal.

  5. Continued:

    As a further note: I did not call all republicans Nazi's. I said the group of bigoted, self-righteous, freedom hating members of the Arizona legislature that crafted this bill and the bill about birth certificates have acted and are continuing to act in ways for which Hitler and Stalin would have been proud. Both totalitarian regimes treated freedoms and rights with contempt, as did this group of people. Both countries required anyone in their country to carry their "papers" with them at all times.

    Come to think of it, objection to a "national ID", and the requirement to carry it is a Republican sentiment, is it not? Intrusion of big government? Intrusion on individual freedoms? I would think that most Republicans would find that these suggestions, as well as the proposal by some in the Arizona legislature to ignore the 14th Amendment as it defines citizenship, to be opposed to core Republican values of smaller government and less government intrusion.

  6. Hitler and Stalin required everyone to carry papers, only non-citizens are required to carry them here, something that is already a federal law and Arizona added because they were irritated that the gov't would not enforce that law. Also Hitler made laws making Jews criminals because they were Jews. Az attempted to make it easier for their police to arrest people who were breaking a law put in place before most of the legislature was born. Generally the term bigot is used for someone who is targetting a group based on race, religion, etc. not someone targetting a group because they broke a law. Just because the majority of people who break this law are Mexican does not make the law racist or bigoted. By that standard the FBI is bigoted for going after the Italian or Russian mafia.

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  8. Tuck,

    I remember when they announced the use of Guantanamo Bay as a prison. I remember my conservative friends saying, "Look, it's not like they are putting US Citizens in jail without charge or access to counsel. These are TERRORISTS for God's sake, do you want to give them all of the protections due citizens of the US???!!"

    So I asked my friends, "If this were US Citizens, you'd feel differently?" Most said 'yes', one said "I wouldn't care." His response seemed to show that some people are willing to put prohibitions against usurping individual liberties aside if they are not personally impacted as long as they feel safer. They seem to convey an attitude that standing up to protect such freedoms really is just a nice "idea", but something that they're ready and willing to engage in if it means they get what they want just so long as it isn't done to them specifically. Others, like those who said they'd feel differently if it were US Citizens, want it done, but want some barrier which protects THEM.

    Later, when Yasir Hamdi and Jose Padilla, both US Citizens, were jailed without charge (violating Habeaus Corpus and protections calling for a speedy trial), the right, including no one really in any leadership position, didn't blink. Again, in HAMDAN v. Rumsfeld (not to be confused with Hamdi v. Rumsfeld) - the US Supreme Court rightly ruled that it the SCOTUS had jurisdiction to review US conduct, Congressional leaders from the right argued it was meant to strip it of even though facts showed they never DID argue for that during deliberations of the law under review, in short, they lied, and attempted to usurp the right of SCOTUS to review the conduct of the government. In US v. Hamdan the SCOTUS also ruled that the US had not lived up to treaty obligations in violation of US law (which requires that we do so). The most conservative members of the court argued that the law Congress had passed prevented the review AND that the US didn't have to abide by such treaties, such promises, in time of war (iirc).

    Further, the lawyer representing Hamdan, a US Naval Officer who prevailed on behalf of Hamdan, was cashiered in what was obviously a political punishment for having the temerity to 'win'. He was a decorated and highly respected lawyer, but he'd had the audacity to be an effective lawyer representing his client. When this was done, the right again didn't bat an eye. It didn't bat an eye at violating our treaty promises (which were called 'quaint' by Condolleza Rice), nor did it bat at eye at the mistreatment of a decorated officer.

    My point Tuck is this, you have no guarantee that this requirement to carry papers won't be extended at some later point to US Citizens. In fact, and based on past BAD conduct, I think there's pretty strong evidence it would be done willingly and without any meaningful objection, certainly not from the right.

    THe Bush DOJ fired 12 (or was it 21) US Attorney's for not engaging in prosecution and pursuit of voter fraud charges which were deemed specious - the allegations were against (without exception) Democrats. The Bush DOJ, much like it did in it's rulings in favor of illegal conduct like that in the Padilla, Hamdi and Hamdan cases, was ready willing and able to employ the 'government' in political vendettas against US Citizens, and few (if any) on the right raised a voice in protest.

    Fundementally the process of stripping rights does not start with a bang, but rather with a whimper, a nibble at the edges. We were ready to trade away our honor and the trust of our treaty partners (by not honoring treaties) our rights to speedy trials, our rights to even be charged and GET a trial, and our right of judicial review - and all done of it was done by supposed "small government conservatives" like John Cornyn and Lindsay Graham (who argued against Hamdan getting any review).

  9. My experience is that in general "conservatism" in NO WAY equates to small government. Instead it equates to government excess by other means. It seems to favor a government of the powerful, and the use of that power to include setting up police powers which are able to usurp and destroy the very foundational liberties we say we stand for.

    AND, by the way, among those liberties is the right to say to the government, "Unless you have a legitimate reason for knowing, I am not obligated to prove to you who I am or what I am doing, for it is none of your business. I am entitled to the "pursuit of happiness" without you knowing anything about it."

    When we are ready to let the powerless be bullied, we stand ready to let ourselves be bullied next. There is a famous quote that I can no longer find the exact text of which goes something like "It is the defense of the rights and liberties of the unwashed and unpopular which defends the rights and liberties of the popular."

    Since I can't, I'll insted quote the US SCOTUS in a decision from the early days of our country on the role of a Prosecutor/District Attorney - which greatly clarifies the idea of government of our founders..

    Fout v. State, 4 Tenn. 98 (1816)

    “ He is to judge between the people and the government; he is to be the safeguard of the one and the advocate for the rights of the other; he ought not to suffer the innocent to be oppressed or vexatiously harassed, any more than those who deserve prosecution to escape; he is to pursue guilt; he to protect innocence; he is to judge the circumstances, and according to their true complexion, to combine the public welfare and the safety of the citizens, preserving both, and not impairing either; he is to decline the use of individual passions and individual malevolenc."

    He ought not suffer the innocent to be oppressed..This is perhaps the most fundamental statement of what we believe in as Americans - that the government shall not be allowed to trammel on the rights of even the lowest/least defensible among us... where exactly does allowing non-citizens to be harrassed/harried align with this sentiment?

  10. The ostensible justification for this state-level legislation is that the situation is so dire, and the federal level immigration actions are so deficient, that the state HAS to make this effort.

    However, the facts - those pesky pesky facts - don't support that conclusion, they tend to refute it.

    I offer here in support of that this Time magazine story:,8599,2007474,00.html?iid=tsmodule which cites statistics supported by other fact-checking sources.

    The number of illegal immigrants trying to cross into the US is down. The number of illegal immigrants being deported by the feds is up -- WAY up.

    The claims about crime and violences are in fact not only wrong, the situation is substantially the opposite of what is claimed.

    Which is not to say there is NO problem whatsoever. A problem exists. However, clearly the Obama administration and federal efforts are proving effective, and their performance does not merit unconstitutional intervention by the state of Arizon or any other state contemplating similarly unconstitutional legislation.

    For a group of people who give a lot of lip service, and noise, for supporting our constitution, those attacks on the constitution sure seem to come disproportionately from them.


  11. 8 USC 1304(e) requires that every alien is required to carry, at all times, an alien registration card or the receipt for that registration. You're right. US Citizens aren't required to carry identification. However, I somehow doubt that an Arizona law enforcement officer such as Sherrif Araipo is going to ask a visiting British tourist for his registration card. As Penigma has pointed out, this is a very short, slippery slope we're heading down when we do this.

    Again, let's review:

    Republicans don't like big government, right? (well, at least they claim not to)

    Republicans supposedly support the notion that government should stay out of people's lives, right?

    Republicans support the idea of individual freedoms, right?

    I have read the US Constitution over and over. I've also searched Supreme Court databases over and over. I've yet to see any clause in the US Constitution that limits the constitutional protections of the Bill of Rights to only US Citizens. I've yet to read any US Supreme Court case that has indicated that a non-citizen doesn't have 4th amendment rights, etc. Even with the current make up of the Supreme Court, I can't fathom such a case coming down either.

    Bigot - "somebody with strong opinions, especially on politics, religion, or ethnicity, who refuses to accept different views" (Encarta English Dictionary online)

    This law was created by a group of people who are so two-faced that its incredible. On one hand, they don't want undocumented immigrants coming into Arizona. One the other hand, they hire them for their construction crews, etc, because US citizens won't accept the miserable pay and poor working conditions.

    Let's not kid ourselves either. This law wasn't aimed at Africans. It wasn't aimed at Chinese. It was aimed at Hispanic immigrants.

  12. To further advance the argument that the Republicans in AZ are deliberately using misinformation - from today's weekly subscription email from

    J.D. Hayworth — who is seeking to unseat Sen. John McCain of Arizona in the Aug. 24 Republican primary — makes illegal immigration the subject of his first TV buy. The ad attacks the Comprehensive Immigration Reform Act of 2007 for potentially costing U.S. taxpayers $2.6 trillion and "rewarding illegal aliens with Social Security and Medicare benefits." The first claim is misleading, and the second is wrong.

    It’s false to say "illegal aliens" would get benefits. They wouldn’t be eligible for Social Security and Medicare until they became legal and worked and paid taxes, just like everybody else.
    The $2.6 trillion cost estimate — which is spread out over decades — comes from a "rough estimate" by a conservative group, and it’s based on questionable and even false assumptions. The nonpartisan Congressional Budget Office came up with a far lower cost estimate based on different assumptions.

    Note: This is a summary only. The full article with analysis, images and citations may be viewed on our Web site:"