In April of this year, Arizona Governor Janice K. Brewer signed into law an immigration enforcement statute and series of amendments, known as SB 1070, which some hailed as a welcome crackdown on illegal immigration and others viewed as an overreaction that will result in widespread racial profiling and civil rights violations. The law seeks increased enforcement against undocumented immigrants by giving local law enforcement agencies greater authority to verify the immigration status of persons arrested or stopped by the police in Arizona. 

There has been vigorous public debate as to the need and the merits of this approach, most of which has focused on the language in the law that requires police to make inquiries regarding immigration status when they have reasonable suspicion that a person does not have legal status. The law also criminalizes violations of several federal immigration laws, both for employers and undocumented employees. The Department of Justice filed suit in U.S. District Court on July 6 to block implementation of SB 1070 before it was scheduled to become effective today.

In a carefully crafted opinion issued yesterday, U.S. District Judge Susan R. Bolton granted the Department of Justice’s motion for a preliminary injunction for several parts of SB 1070. The primary argument asserted by the Department of Justice in United States of America vs. Arizona was that the U.S. Constitution grants the federal government the authority to develop and enforce immigration laws. The doctrine of preemption therefore prohibits states from intruding into the federal government’s exclusive jurisdiction. The State of Arizona defended the statute by arguing that the state law merely enhanced and assisted in the enforcement federal law and did not conflict with them.


The standard for a preliminary injunction requires the plaintiff (the Department of Justice) to prove that it was likely to prevail on the merits of the claim, and that it would suffer irreparable harm if the law were permitted to become effective before the case could be litigated to conclusion. Judge Bolton held that the Department of Justice met this burden and accordingly enjoined enforcement of several sections of the law. 


·        SB 1070 requires the police in Arizona to verify the immigration status of every person arrested in the state before being released. Judge Bolton held that this was an unreasonable burden on federal authorities. The Department of Justice argued that the law would overwhelm the Department of Homeland Security (DHS) and divert limited resources from DHS priorities. The Court agreed and noted that it would also have an adverse impact upon lawful immigrants and citizens who were arrested, but whose status could not be easily or quickly verified. 


·        Probably the most controversial section of the law required the police to investigate the immigration status of all persons lawfully stopped or arrested if there is reasonable suspicion they lack valid immigration status. The Court noted that the same problems described above apply to this section. In addition, Judge Bolton noted that U.S. citizens are not required to carry proof of citizenship and therefore would be subject to arrest and detention unnecessarily. Interestingly, however, she did not cite the concerns of racial profiling that have been a significant part of the public discussion on this provision.


·        SB 1070 imposes additional criminal penalties in Arizona for the failure to apply for, maintain or carry proof of immigration status. The Court found that these provisions interfere with the federal comprehensive immigration registration provisions. As such, Arizona’s increasing the penalties for violation of federal law exceeded its authority.


An additional provision enjoined by Judge Bolton highlights the different approaches and competing theories to immigration enforcement centers. In 1986, Congress enacted the Immigration Reform and Control Act (IRCA) and placed the burden on employers to verify employment authorization. Newly hired employees are required to present documents and prepare the I-9 form asserting their employment authorization. While it is a crime to knowingly hire an undocumented worker, it is not a crime to apply for a job without proper documentation.  Judge Bolton noted the complexity of this regulatory scheme as she properly explained that it is a crime to submit fraudulent documents but not to submit the application for employment. However, the Arizona law created a separate state crime for an application for employment if a person lacks employment authorization. Judge Bolton held that because this specific provision was considered and rejected by Congress, Arizona’s attempt to add this provision to state law was inconsistent with the federal regulatory scheme. 


Judge Bolton did not enjoin the sections of SB 1070 that prohibit day laborers from blocking traffic and soliciting employment on street corners, nor did she enjoin the sections of the statute that prohibit local governments from passing laws or implementing policies to instruct officials not to enforce immigration laws.


The State of Arizona already has expressed its intent to appeal this decision to the Ninth Circuit U.S. Court of Appeals. The case eventually could go to the U.S. Supreme Court for final resolution. The Department of Justice prevailed in the first round. Until the decision is overruled, the controversial provisions of SB 1070 will not be enforced. 


An earlier law passed by the Arizona legislature requiring every employer in the state to enroll in the "voluntary" E-Verify program operated by DHS had been upheld by the lower courts against similar arguments. The Supreme Court agreed earlier this month to consider the earlier statute and it is likely that when a decision is issued in that case next summer, we will have a better sense of the ultimate decision on this law as well. In the meantime, most of the immigrant community and employers across the country will look to Congress to address the problems of the dysfunctional immigration system and avoid the patchwork of state and local legislative efforts in this contentious area of law.