Wednesday, July 28, 2010

Most of SB 1070 blocked: victory and a minor disappointment.

As readers are already aware, Judge Susan Bolton of the Arizona District Court issued an order on preliminary injunction, enjoining most of SB 1070, which was to take effect tomorrow. Few others are linking the official order, but as has been the practice since this 'blog was started, of course I do so here.

Left standing are the law's provisions
  • Prohibiting political subdivisions of the state from limiting enforcement of Federal immigration law,
  • requiring that State officials work with Federal officers to determine immigration status,
  • allowing Arizonans to sue political subdivisions which restrict immigration enforcement to less than the full extent allowed by Federal law,
  • making "harboring" or "transporting" undocumented aliens a misdemeanor
  • criminalizing the inhibition of traffic by solicitation of day labor,
  • establishing as a state offense the knowing or intentional employment of undocumented aliens,
  • increasing requirements for verification of employment eligibility,
  • and establishing the "Gang and Immigration Intelligence Team Enforcement Mission Fund"
Most of these provisions are bad law. That there was no injunction does not mean that there is no longer a reasonable Federal pre-emption case against SB 1070's the requirements and penalties SB 1070 established for employers. Probably the worst bit left standing was the authorization of lawsuits. "Full extent" is a very dangerous idea: if Federal law allows a police department to spend every last dime and every man-hour on immigration enforcement, someone can sue if police do other things, like respond to calls or attempt to bring in suspects in crimes, especially the real sort that have identifiable victims. But there was never much of a Federal case against that and certainly none that merited an injunction.

It is a significant victory: most of the provisions of SB 1070 that would have led to violations of protected civil rights were enjoined from taking effect until the cases are decided. That these provisions were enjoined signifies (by legal standards) that the US DOJ can expect to succeed against them with high likelihood. I would have preferred that the order was based more on the ACLU and Co's 4th Amendment complaint than on the DOJ's concerns about preemption, but the effect is the same, at least in the near future.

The disappointment comes at Ms Bolton's introductory phrase:
Against a backdrop of rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns...

A better version would have referred to this as perception, and not reality; the court should not perpetuate folktales. This is the bigots' narrative, the history that they Just Made Up to whip up support for oppression of outsiders. This session, it became the legislature's cause of action. It is false.

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