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Key Portions of Arizona Immigration Law Struck Down by Federal Court

by Professor Will Huhn on July 30, 2010

in Constitutional Law,Immigration Law,Wilson Huhn

     On Wednesday Judge Susan R. Bolton of the Federal District Court for Arizona struck down key portions of the Arizona statute regulating immigration.

     Judge Bolton's decision may be accessed here.  Bolton did not invalidate the entire statute, nor did she issue a final ruling.  She ruled that the statute was "severable," meaning that each of its provisions had to be considered separately.  The United States had challenged the law as a whole, but it did not challenge each provision separately; instead the federal government had argued that only certain sections of the law were unconstitutional.  The district court struck down the provisions of the state law that the federal government specificially challenged.

     The Constitution contains several provisions that relate to this controversy.  First, any state law that "frustrates the purpose" of a federal law is invalid under the Supremacy Clause of the Constitution, which provides:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

     Second, it appears that the framers not only intended for Congress to have the power to regulate immigration and naturalization, but that they wanted these laws to be uniform throughout the United States.  Article I, Section 8, Clause 4 provides that "Congress shall have power:"

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.

     Third, the Fourteenth Amendment quite clearly makes "state citizenship" subservient to and dependent upon "national citizenship."  The first sentence of the Fourteenth Amendment provides:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

     While not directly applicable to the Arizona law, this provision of the Fourteenth Amendment is further evidence that the determinization of citizenship and the treatment of aliens within our borders is a matter of federal law, not state law.

     The district court found that four provisions of the state law were in conflict with federal policy.  Judge Bolton stated:

Applying the proper legal standards based upon well-established precedent, the Court finds that the United States is likely to succeed on the merits in showing that the following Sections of S.B. 1070 are preempted by federal law:

Portion of Section 2 of S.B. 1070 A.R.S. § 11-1051(B): 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;

Section 3 of S.B. 1070 A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien registration papers;

Portion of Section 5 of S.B. 1070 A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply for, or perform work;

Section 6 of S.B. 1070 A.R.S. § 13-3883(A)(5): 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.

     Judge Bolton observed that federal law does not require people – citizens, lawfully resident aliens, or persons here illegally – to carry proof of citizenship or the right to be present in this country, and that the enforcement of these laws would likely result in the detention and confinement of persons (citizens, lawfully resident aliens, and undocumented aliens) in violation of federal policy.  Furthermore, federal law does not make it crime for an undocumented person to apply for work; instead federal law makes it a crime for employers to hire undocumented workers.  Finally, federal law does not authorize state and local police officers – particularly police officers who have not participated in training programs conducted by the federal government – to perform warrantless arrests of individuals for purposes of deportation.

     The Arizona law contains a number of provisions that the federal government did not specifically challenge.  The state statute requires state and local police officers to work with federal officials with respect to unlawfully present aliens; prohibits state and local officials from limiting the enforcement of federal immigration laws; amends the law of human smuggling; amends the crimes of knowing and intentional employment of unauthorized aliens; and creates a fund to support the gathering of information on gang activity and immigration.  At least at this stage of the proceeding, the federal government apparently has no objection to those provisions, and the district court did not rule on their constitutionality.

     The district court's ruling will be appealed to the Ninth Circuit Court of Appeals.  I would expect, however, for this matter to proceed to trial where there could be an evidentiary hearing and a full exploration of the issues before the Supreme Court would consider reviewing the matter.


larry d. July 30, 2010 at 10:03 am

When is Holder going to go after the so-called sanctuary cities? They seem to be openly defying federal immigration law.

Mike August 3, 2010 at 3:58 pm

Larry, are these "sanctuary cities", preventing federal authorities from enforcing federal laws? Are these cities blocking access, or interfering with federal agents attempting to enforce a federal code?

larry d. August 3, 2010 at 9:07 pm

Is Arizona? Is that the bar?

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