A U.S. District judge’s decision yesterday to issue a temporary injunction against Arizona’s enforcement of its new immigration law is a significant blow to the state’s efforts. The case could be appealed, however, and the state legislature may amend the law based on the ruling to give it a better chance of holding up.
The ruling is interesting in that the judge determined some parts of Arizona’s law were indeed preempted by federal law, but that the entire law would not be struck down (SB 1070 contains a severability clause respected by the judge). Even though some parts of the law survived, however, the key provisions of Section 2B were struck down. That section reads:
For any lawful stop, detention or arrest made by [an Arizona] law enforcement
official or . . . law enforcement agency . . . in the enforcement of any other law
or ordinance of a county, city or town of this state where reasonable suspicion
exists that the person is an alien and is unlawfully present in the United States,
a reasonable attempt shall be made, when practicable, to determine the
immigration status of the person, except if the determination may hinder or
obstruct an investigation. Any person who is arrested shall have the person’s
immigration status determined before the person is released.
This was the section that caused the loudest uproar from opponents, including the White House. Originally, the first sentence read “lawful contact,” and was later amended to say “lawful stop, detention, or arrest.” The judge’s logic for the decision was based on a key assumption that she made about the interpretation of the second sentence of 2B:
The Court first addresses the second sentence of Section 2(B): “Any person who is
arrested shall have the person’s immigration status determined before the person is released.”
Arizona advances that the proper interpretation of this sentence is “that only where a
reasonable suspicion exists that a person arrested is an alien and is unlawfully present in the
United States must the person’s immigration status be determined before the person is
released.” (Defs.’ Resp. to Pl.’s Mot. (“Defs.’ Resp.”) at 10.)5 Arizona goes on to state, “[T]he
Arizona Legislature could not have intended to compel Arizona’s law enforcement officers
to determine and verify the immigration status of every single person arrested – even for
United States citizens and when there is absolutely no reason to believe the person is
unlawfully present in the country.” (Id.)
The Court cannot interpret this provision as Arizona suggests. Before the passage of
H.B. 2162, the first sentence of Section 2(B) of the original S.B. 1070 began, “For any lawful
contact” rather than “For any lawful stop, detention or arrest.” (Compare original S.B. 1070
§ 2(B) with H.B. 2162 § 3(B).) The second sentence was identical in the original version and
as modified by H.B. 2162. It is not a logical interpretation of the Arizona Legislature’s intent
to state that it originally intended the first two sentences of Section 2(B) to be read as dependent on one another. As initially written, the first sentence of Section 2(B) did not
contain the word “arrest,” such that the second sentence could be read as modifying or
explicating the first sentence. In S.B. 1070 as originally enacted, the first two sentences of
Section 2(B) are clearly independent of one another. Therefore, it does not follow logically
that by changing “any lawful contact” to “any lawful stop, detention or arrest” in the first
sentence, the Arizona Legislature intended to alter the meaning of the second sentence in any
way. If that had been the Legislature’s intent, it could easily have modified the second
As a result of this conclusion, the Court reads the second sentence of Section 2(B)
independently from the first sentence.
The reason the reading of the second sentence of 2B is important is because the judge’s logic depends on the assumption that any arrested person will have to have his or her immigration status checked before being released. The judge concludes that such a reading of the law would increase the federal government’s workload on such cases and the law would “[stand] as an obstacle to the accomplishment of the full purposes and objectives of Congress” (Hines v. Davidowitz):
Pursuant to 8 U.S.C. § 1373(c), DHS is required to “respond to an inquiry by a Federal,
State, or local government agency, seeking to verify or ascertain the citizenship or
immigration status . . . for any purpose authorized by law, by providing the requested
verification or status information.” DHS has, in its discretion, set up LESC, which is
administered by ICE and “serves as a national enforcement operations center that promptly
provides immigration status and identity information to local, state, and federal law
enforcement agencies regarding aliens suspected of, arrested for, or convicted of criminal
activity.” (Pl.’s Mot. at 6-7 (citing Palmatier Decl. ¶¶ 3-6).) Mr. Palmatier states in his
Declaration that LESC resources are currently dedicated in part to national security objectives
such as requests for immigration status determination from the United States Secret Service,
the FBI, and employment-related requests at “national security related locations that could be
vulnerable to sabotage, attack, or exploitation.” (Palmatier Decl. ¶ 4.) Thus, an increase in the
number of requests for determinations of immigration status, such as is likely to result from
the mandatory requirement that Arizona law enforcement officials and agencies check the
immigration status of any person who is arrested, will divert resources from the federal
government’s other responsibilities and priorities.
For these reasons, the United States has demonstrated that it is likely to succeed on its
claim that the mandatory immigration verification upon arrest requirement contained in
Section 2(B) of S.B. 1070 is preempted by federal law.
A preemption ruling in this case does not seem unreasonable, but I have a few questions about the logic used here to justify preemption. First, what are the “full purposes and objectives” of federal immigration law? Second, are those “full purposes and objectives” presently being met by the federal government? Third, what is the maximum capability of the federal government to handle immigration inquiries before it must “divert resources” to meet the “full purposes and objectives” of the immigration law? And fourth, what additional burden would the Arizona law in question place on the federal government to handle any additional inquiries?
The reason I ask is simply to evaluate whether or not the law in question would indeed require the federal government to divert enough resources from other priorities to handle an increased burden in a way that would “[stand] as an obstacle to the accomplishment of the full purposes and objectives of Congress.” It’s not that I doubt the judge, it’s that I like to see quantitative evidence when we’re talking about resources as a quantity.
One piece of evidence is a declaration from Jessica Vaughn, a Director of Policy Studies. Responding to points made by David Palmatier (cited by the judge in her opinion, see above), Ms. Vaughn declares:
49. Some of Mr. Palmatier’s specific points should be addressed. First, he documents the increase in the query traffic at the LESC in recent years.
50. In paragraph 9 he reports that the LESC is on track to handle just over 1 million queries in FY 2010. In paragraph 13, he states that the theoretical capacity is 1.5 million. In paragraphs 15 and 19, he states that Arizona agencies currently submit about 80,000 queries.
51. So, even if the number of queries from Arizona were to double, that would not push the total number of queries close to the limits of the LESC capacity. And, as explored below, there is little reason to assume such a large increase would actually occur.
There are some actual numbers, and they don’t seem to support the argument that the federal government would face an increased burden that would prevent it from fulfilling its other duties. Ms. Vaughn continues:
57. Mr. Palatier suggests that there might be an increase in the number of LESC queries as more patrol officers seek to determine the immigration status of individuals encountered on traffic stops, the vast majority of which do not result in arrest.
58. However it is important to remember that most traffic stops in Arizona involve U.S. citizens and legal immigrants, and both groups will be able to easily establish lawful status that would not need to be verified with the LESC.
59. Knowing that many Arizona law enforcement officers are already well-trained and experienced in immigration status queries, and thus already using the LESC (which is the preferred method for these status queries, as opposed to calling an ICE duty officer) I find little empirical or logical support for the idea that even adding queries resulting from traffic stops and other non-arrest encounters will produce a sufficient number of new queries to adversely impact LESC operations.
Then there is the issue of screening everyone who is arrested, including legal citizens. Again, this returns to the judge’s key determination that the second part of 2B should be read independently of the first part:
60. Mr. Palmatier suggests that a large number of U.S. citizens will have to be screened through the LESC, and that the LESC will not have a record of these individuals, which will be confusing to local officers and potentially result in the unfair detention of these citizens.
61. However, according to my understanding of the Arizona law, U.S. citizens will be able to establish their status by providing a driver’s license or a simple oral declaration, meaning officers would be unlikely to resort to an LESC query.
Mark Levin has passionately supported the Arizona law in this case, and he writes a critical analysis of the decision here. Heather Mac Donald is critical here, and Andy McCarthy here. Peter Spiro suggests that the judge’s reliance on Hines is somewhat of a stretch.
UPDATE: Ed Morrissey asks why the 287g law that I recently mentioned (and H/T to Mark Levin, who I believe is the first person I heard mention it) doesn’t contradict Judge Bolton’s preemption ruling. As I suggested before, 287g seems to blow a hole in the field preemption argument. The judge, however, didn’t rule in favor of field preemption, but she did for conflict preemption.
The issue at hand is the allocation of federal resources in comparison to the intent of federal law. I went back to look at the ruling, and noticed an interesting footnote that helps explain Judge Bolton’s concern for using too many federal resources, even though she doesn’t offer a quantitative analysis:
7 The problems associated with burdening federal resources are even more acute when
considered in light of other state laws similar to this provision. (See Pl.’s Mot. at 31-32
(citing to a newspaper article stating that at least 18 other states are considering parallel
legislation).); see also North Dakota v. United States, 495 U.S. 423, 458-59 (1990) (Brennan, J., concurring in plurality opinion in part and dissenting in part) (collecting cases where
burden of state regulation on federal government was amplified by aggregate potential of
multiple states following suit).
Judge Bolton seems concerned that too many states would pass similar laws that would overburden the federal government. That argument seems plausible, but again, we need to know what the federal government was intended to be capable of doing in comparison to how much it would have to do. 287g seems to put the federal government’s intentions in that regard into context.
If states can request enrollment in the 287g program, then it is hard to argue that the federal government was not intended to be able to handle more than it currently is doing.