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Arizona getting its day in court (again)


It's been almost a year since the Supreme Court upheld an Arizona law that requires all businesses in the state to use E-Verify or face penalties up to and including the suspension of its business license. And on Wednesday, the state heads back to the nation's High Court to defend its immigration enforcement law, originally known as SB1070, that's come under fire from the Obama administration's Justice Department.

The comprehensive law, as written, accomplishes four main things:

  1. Requires police officers to check the immigration status of any individual during "any lawful stop, detention, or arrest … in the enforcement of any other law or ordinance" where the officer has reasonable suspicion that the individual is an illegal alien. If it's determined that the individual is an illegal alien, Immigration and Customs Enforcement or Border Patrol must be notified.
  2. Forbids any state agency, county, city, town, or political subdivision from enacting sanctuary policies for illegal aliens.
  3. Requires all aliens to carry their registration document at all times.
  4. Makes it a misdemeanor crime for any individual picking up day laborers to block or impede the flow of traffic and also makes it a misdemeanor crime for an illegal alien to look for work in a public place or block or impede traffic in the pursuit of work.

Critics have claimed that the law will lead to racial profiling, but in section 2 of the bill, it clearly states:

A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not solely consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or the Arizona Constitution.

While an unscrupulous cop could disregard that clause, that's an issue with the cop, not with the law as written. So, the legal challenge by the Justice Department doesn't focus on racial profiling, but rather on the U.S. Constitution's Supremacy Clause. Simply, the Justice Department has argued that the Constitution grants Congress the power over naturalization, therefore immigration enforcement is "exclusively vested in the federal government."

The Justice Department further argues that enactment of Arizona's law will require the Department of Homeland Security to move resources assigned to other critical tasks to deal with the illegal aliens arrested by Arizona police, which would prevent them from dealing with enforcement at a national level. In other words, the government doesn't want to arrest and detain illegal aliens, so Arizona can't either.

The first ruling on the fed's lawsuit came in July of 2010 when U.S. District Court Judge Susan Bolton blocked the main provision of the law that requires police to check immigration status. In her ruling, Judge Bolton agreed with the Justice Department's claim that enforcement of that clause would have a negative impact on national immigration enforcement. Judge Bolton allowed the other provisions of the law to stand.

Gov. Jan Brewer and the state of Arizona appealed the ruling, and in November of 2010, a three-judge panel making up the Ninth Circuit Court of Appeals listened to arguments. In April of 2011, just weeks before the Supreme Court would uphold Arizona's E-Verify law, the Ninth Circuit issued its decision reinforcing Judge Susan Bolton's ruling. One month later, Gov. Brewer announced she would take it all the way to the Supreme Court.

Since then, Judge Bolton has issued a ruling on another suit filed by third-party group, and in February of this year, she suspended the provision that makes it a crime to block traffic in an effort to gain employment.

Since Arizona passed SB1070 in 2010, five other states - Utah, Indiana, Georgia, Mississippi, and Alabama - have passed similar laws and await the Supreme Court's decision. Meanwhile, Senate Immigration Subcommittee Chairman Chuck Schumer (D-N.Y.), who says the law is an "assault on the domain of the federal government", is putting the final touches on legislation in case the Court upholds the entire law. The bill is unlikely to reach the 60 votes needed to open debate in the Senate, but is meant to provide pro-amnesty Senators a chance to rebuke the law on the record.

We have a great resource on our website that not only offers more details on each provision of Arizona's law, but also provides links to the federal code that the law was based on. For example, U.S. code already requires immigrants and aliens over the age of 18 to carry their documentation with them at all times (8 U.S.C. 1302) and forbids municipalities from enacting sanctuary policies (8 U.S.C. 1373). View that page here. We also have on our website a presentation that shows the states that have passed enforcement laws similar to SB1070 as well as other immigration enforcement measures.

CHRIS CHMIELENSKI is the Director of Content & Activism for NumbersUSA

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