Federal Court Puts Arizona Immigration Law On Hold

A Federal Judge in Arizona has blocked the key provisions of Arizona’s immigration law from going into effect tomorrow:

PHOENIX — A federal judge on Wednesday, weighing in on a clash between the federal government and a state over immigration policy, blocked the most controversial parts of Arizona’s immigration enforcement law from going into effect.

In a ruling on a law that has rocked politics coast to coast and thrown a spotlight on a border state’s fierce debate over immigration, Judge Susan Bolton of Federal District Court here said that some aspects of the law can go into effect as scheduled on Thursday.

But Judge Bolton took aim at the parts of the law that have generated the most controversy, issuing a preliminary injunction against sections that called for police officers to check a person’s immigration status while enforcing other laws and that required immigrants to carry their papers at all times.

Judge Bolton put those sections on hold while she continued to hear the larger issues in the challenges to the law.

“Preserving the status quo through a preliminary injunction is less harmful than allowing state laws that are likely pre-empted by federal law to be enforced,” she said.

Specifically, the injunction prevents the following provisions of the law from going into effect:

•  The portion of the law that requires an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there’s reasonable suspicion they’re in the country illegally.

•  The portion that creates a crime of failure to apply for or carry “alien-registration papers.”

•  The portion that makes it a crime for illegal immigrants to solicit, apply for or perform work. (This does not include the section on day laborers.)

•  The portion that allows for a warrantless arrest of a person where there is probable cause to believe they have committed a public offense that makes them removable from the United States.

While the Court’s Order spends most of the opinion discussing the Federal Govedrnment’s argument that the Arizona law unlawfully pre-empts Federal immigration law, it also recognizes, correctly, that it has the potential to negatively impact the rights of people who are in the United States legally:

Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully-present aliens because their liberty will be restricted while their status is checked. Given the large number of people who are technically “arrested” but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification. (See Escobar, et al. v. City of Tucson, et al., No. CV 10-249-TUC-SRB, Doc. 9, City of Tucson’s Answer & Cross-cl., ¶ 38 (stating that during fiscal year 2009, Tucson used the cite-and-release procedure provided by A.R.S. § 13-3903 to “arrest” and immediately release 36,821 people).) Under Section 2(B) of S.B. 1070, all arrestees will be required to prove their immigration status to the satisfaction of state authorities, thus increasing the intrusion of police presence into the lives of legally-present aliens (and even United States citizens), who will necessarily be swept up by this requirement

This decision, which is not the end of the road by any means, strikes me as correct.

As the Court notes in the highlighted quote above, the question at the preliminary injunction stage is whether it would be more harmful to allow a potentially unconstitutional law to go into effect, or to suspend the law until the Court has had a chance to conduct a full hearing on the law’s merits. In this case, it’s fairly clear that the potential dangers of racial profiling and legal-residents being caught up in a Sheriff Joe Arpaio immigration net were severe enough to justify giving the Court time to look at the law without the danger of further litigation being filed because individual rights are being violated.

Already, Arizona Governor Jan Brewer has vowed to appeal the Court’s decision, which isn’t surprising since that’s what either side would have said depending on the Court’s ruling.However, any appeal process is going to be a long-term matter and that it will be a year or more before the legal issues raised today are ruled on by the Supreme Court.

Before that happens, though, we’ll see what the political consequences of this decision wil be. Nearly every poll on the issue shows that most Americans support the Arizona law, and it’s no doubt likely that Republicans will try to use this decision — by a Clinton-appointed judge —- against the Democrats in the fall. Whether it will work is something we won’t know until November 3rd.

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