The Courts and the Arizona Immigration Law

We talked about this in class today, but I decided to blog about the Arizona law a bit tonight too since then a judge issued a preliminary injunction on 4 parts of the Arizona law. This leaves the vast majority of the law intact, only siding with the administration on 4/6 provisions that they had asked for the injunction on. Regardless on my feelings toward the merits of the law, I decided to focus more on the constitutional side of things.

I decided before I'd blog about the ruling that I would read her order. I encourage all of you to do the same, its relatively easy to read. You can access it here. Although it is a bit lengthy, it provides great background info on the law and Bolton's legal reasoning for her injunction. Her opinions actually did somewhat change my mind on the constitutional issues.

So the injunction covers sections of the 2nd, 3rd, 5th, and 6th provisions (below in the smaller print) of the law as potential violations of the supremacy:

2- requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person

3-creating a crime for the failure to apply for or carry alien registration papers

5-creating a crime for an unauthorized alien to solicit, apply for, or perform work

6-authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States

Bolton's order points to a 1941 Supreme Court case, Hines v Davidowitz, that ruled that mandatory carrying of registration papers by PA was unconstitutional as it went against the methods created by the federal government violating the supremacy clause. With this in mind I absolutely agree with the second part of the injunction that covers section 3. Also I'm leaning toward the possible unconstitutionality of the first part covering section 2 specifically in regard to stopping and detention. This is because taken in conjunction it would require aliens in Arizona to carry papers on a regular basis, which according to Hines is unconstitutional… So, I changed my view on these parts of the law.

Then for sections 5 of the law, I disagree with Judge Bolton who makes the argument that Congress has already regulated this area violating the supremacy clause. However, AZ has a decent 10th amendment case to make since employment is often regulated at the state level and because Congress did not regulate unauthorized alien employees who apply for work.

For section 6, I agree with Judge Bolton in part, as she makes the case that the provision is too complex and confusing in context of other AZ and US laws, thus in her thought process violating the Hines precedent. However I think it burdens the state of AZ rather than illegal aliens because Judge Bolton points out law enforcement can do this already anyways. Although I think this provision would have little effect on the law as a whole whether it is struck down later on or not…

Ultimately, I believe that the Supreme Court will have to get its hands dirty although they are reticent to involve themselves in "political" issues. I like to at least try to keep an open mind and I'm glad that I did because its changed some since reading the injunction order. So, I encourage you all to read the order, its a good read with good information.

-Sean F