Constitutionality of Arizona Immigration Law SB 1070 Research Paper

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Arizona SB 1070

On January 13, 2010 Senator Russell Pearce, representative of District 18 in Mesa, introduced Senate Bill 1070 which stated as it's intent to make attrition through enforcement the public policy of the state of Arizona. In support of this goal, the state would seek to enforce all federal immigration laws in an effort to deter "the unlawful entry and presence of illegal aliens and economic activity by illegal aliens in the United States." ("Support Our Law Enforcement") Just over three months later, on April 23, Arizona governor Jan Brewer signed the bill into law; which immediately provoked four lawsuits that challenged the constitutionality of the law. These lawsuits were filed in federal court, outside the jurisdiction of any state court. In response to criticisms, Governor Jan Brewer then signed Senate Bill 2162, a bill which modified the newly enacted immigration law. But this did not quiet opponents who filed more lawsuits and were joined by the United States Department of Justice. The Department of Justice's lawsuit, filed on July 6, claimed that the Arizona immigration law was unconstitutional because it interfered with federal immigration regulation; the prerogative of the federal government, not any one state.

The first official response came in the form of District Judge Susan Bolton ruling that the Justice Department's suit was valid and granting a temporary injunction that blocked several key features of the law from being implemented. Undeterred, the very day after Judge Susan Bolton's ruling, the state of Arizona then put into effect any portions of the law that her ruling did not specifically block. This was the situation from the end of July until November 1 when the Ninth Circuit Court of Appeals heard the appeal filed by the state of Arizona in response to Judge Bolton's ruling. The Court of Appeals then upheld Judge Bolton's ruling setting the stage for the case to be brought to the Supreme Court of the United States. Just a little over a year from when Arizona Governor Jan Brewer signed SB 1070 into law, the case was being heard by the highest court in the land. Oral arguments over the law took place on April 25, 2011 before the Supreme Court and two months later, on June 25 they released their decision. The Court struck down several key features of the law, primarily the authority the state of Arizona gave itself to enforce federal law, but did uphold the provision which allowed for police to check the immigration status of people in certain circumstances. In effect, the court said that Arizona overreached its authority and interfered with immigration policy; something that was the authority of the federal government.

Arizona Senate Bill 1070 stated in its text that the purpose of the legislation was to declare attrition through enforcement to be the official policy of the state. This meant that the state of Arizona was to, in effect, declare war on illegal aliens and illegal immigration and wage this war through the enforcement of laws designed to deal with this issue. Among the stipulations in the law was a restriction on local police agencies from adopting sanctuary-type policies that would limit or restrict the enforcement of federal immigration laws. The law also permitted law enforcement officers, during lawful stops, to determine the immigration status of individuals who they reasonably suspect of being illegal aliens. This extends to all individuals when an arrest is made. For any illegal alien who is arrested, the law provides for the transfer to federal custody as well as the prohibition of bans or restrictions on the transfer of information to any other governmental agency. This means that the law prohibits local agencies from adopting policies that would keep information about illegal aliens from being sent to government agencies dealing with public benefits, verification of residence, confirming identity, or immigration authorities. If citizens of Arizona feel that their local authorities are not in compliance with this law, it gives them the right to sue any government agency that refuses to comply with the law. One of the most controversial aspects of the law includes a provision that "mirrors federal alien registration laws…which require aliens to register and carry their documents with them at all times…." ("Support Our Law Enforcement") Those who do not can, under SB 1070, be subject to arrest under the Arizona criminal code, not federal.

The law also affects those who hire undocumented aliens making it a crime to transport, harbor, encourage or hire illegal aliens, as well as going so far as to make it illegal to block traffic when picking up day laborers. Employers are also required to verify an employee's legal status through the E-verify system. Finally, the law has a few rather draconian provisions including the authority to arrest, without warrant, anyone police feel has committed an offense that would make them eligible for removal from the United States, as well as the authority to seize and impound vehicles used in the hiring, transportation, or driven by illegal aliens.

In Favor of SB 1070

It was on April 25, 2012 that the Supreme Court of the United States heard oral argument concerning the Arizona Immigration law SB 1070. During their arguments, those in favor of the law made a number of points in favor of the new law. Attorneys for the state of Arizona firstly argued that as a state within the union, Arizona had the inherent right under the Constitution to enforce immigration law. Their next argument was based on Supreme Court precedent which dictated that the "overriding factor in determining whether a state law is preemptive is Congressional intent; not the policies of the Executive Branch." ("Arizona Offers") In other words, the state has the authority to pass a law that is in accordance with the intent of one passed by the United States Congress. In addition, Arizona asserted that the United States Congress has encouraged cooperation and assistance between state and local authorities and their federal counterparts in the enforcement of immigration laws. This, claimed the state of Arizona, has been repeatedly demonstrated through a variety of federal laws already on the books.

The next wave of attacks by the supporters of SB 1070 during their arguments in front of the Supreme Court were aimed at the Obama administration and their insistence that the law "interferes with its own priorities and strategies." ("Arizona Offers") Firstly the attorneys for Arizona inferred that the Executive branch of government was opposing this law because of objections placed by foreign governments and officials. Not only would this invalidate the Justice Department's arguments as being influence by international political pressure, but it played to the more patriotic feelings of the Justices. Secondly, by claiming that SB 1070 was consistent with the intent of Congress when passing federal immigration law, the federal government, by opposing it on the grounds that it was inconsistent with the Obama administration's current policy concerning immigration, was not being consistent with the intentions of Congress when they passed legislation. In other words, the President was choosing not to enforce immigration laws duly passed by Congress, something that was not in line with the Constitution, and thus to compensate for this deficiency, Arizona was forced to enforce federal immigration laws at the local level. And since the local level was where the consequences of the President's actions are happening, the local level should be allowed to make up for the federal government's lack of action.

Against SB 1070

The one thing that everyone agrees upon when discussing Arizona SB 1070 is that the state of Arizona is engaging in activities that had been, in the past, performed by the federal government. While Arizona claimed that it was forced to do this because he Obama administration was refusing to enforce current immigration laws, opponents claim that a state within the union had no right to encroach the authority of the federal government. One of the many lawsuits brought against the state of Arizona over SB 1070 was the case of Friendly House v. Whiting. This case, brought by several plaintiffs, was filed by the ACLU and other civil rights groups and claimed that the law "attempts to regulate immigration and punish those whom Arizona deems to be in violation of immigration laws." ("Arizona SB 1070") In other words, the law gives the authority to the state of Arizona to investigate, arrest, and detain persons suspected of immigration violations. By claiming this authority, the complaint states that SB 1070 is an "impermissible encroachment into an area of exclusive federal authority and will interfere and conflict with the comprehensive federal immigration system enacted by Congress and implemented through a complex web of federal regulations and policies." (Friendly House v. Whiting, 2010, p.6) What Arizona may see as the Obama administration's refusal to enforce immigration laws could be part of a much larger strategy including things that the state of Arizona knows nothing about. This, claim the plaintiffs, is the reason why immigration policy and enforcement…

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