The Sheriff of Nott-in-hand: The Latest Chapter in United States of America v. State of Arizona

On September 2, the U.S. Justice Department brought a lawsuit against Joe Arpaio, an Arizona sheriff from Maricopa County who is best known for his aggressive crackdowns on illegal immigrants. The Justice Department had been investigating Mr. Arpaio’s division after critics alleged that the sheriff’s arrest sweeps amounted to racial profiling against Hispanic individuals. Negotiations between the Department and Mr. Arpaio broke down when the sheriff refused to provide documents related to the arrests for the civil rights inquiry.

USA v. Arizona

The lawsuit represents the latest move by an Obama Justice Department increasingly willing to intervene in Arizona’s immigration battle. The upheaval began in April when the Arizona Legislature passed Senate Bill 1070 (“S.B. 1070” — pdf), amendments to the Arizona Revised Statutes (“A.R.S.”) that, among other things, would require officers to verify the immigration status of any person who is arrested and to make a reasonable attempt, where reasonable suspicion exists, to determine the immigration status of any person who is stopped or detained.

S.B. 1070 drew immediate criticism from Washington D.C., with Congress and the Executive claiming that this law was a clear violation of the federal government’s exclusive power to regulate immigration. In July, the Justice Department filed a lawsuit against the state, challenging the constitutionality of S.B. 1070, and a motion for preliminary injunction to prevent Arizona from enforcing the law until its constitutionality had been determined.

The Decision

Judge Susan Bolton of the Federal District Court of Arizona granted the preliminary injunction against parts of the law in her decision of United States of America v. State of Arizona, No. CV 10-1413-PHX-SRB (D. Ariz.), released July 28, 2010. A copy of the order can be found here (pdf).

In order for a preliminary injunction to succeed, a plaintiff must show that: (1) he is likely to succeed, (2) he is likely to suffer irreparable harm if he does not succeed, (3) the balance of equities tips in his favour, and (4) an injunction is in the public interest. The bulk of Judge Bolton’s judgment deals with the first step of the plaintiff’s burden, namely that the Federal Government must show that its constitutional challenge is likely to succeed. Once Judge Bolton establishes this aspect, she easily grants the other three requirements in favour of the Federal Government.

While the United States brought this lawsuit as a division of powers issue, it becomes clear that the real crux of the case is S.B. 1070’s potential infringement on civil liberties. That is not to say that the division of powers is not a central feature of the judgment. In fact, Judge Bolton determines the constitutionality of most of the S.B. 1070 sections based on conflict preemption, or the extent to which a state law might frustrate the accomplishment of Congress’ purposes or objectives.

For example, the judgment enjoins Section 3 of S.B. 1070, because while the alien registration requirements under the Federal Alien Registration Act and S.B. 1070 remain uniform, the state law alters the penalties established by Congress. This could potentially frustrate the goals of the federal registration scheme. In the same vein, the judgment does not enjoin part of Section 5 (A.R.S. § 13-2928(A)-(B)), which criminalizes any attempt to transport or conceal an alien’s unlawful presence in Arizona. The judge holds that the Federal Government failed to establish that the section violated Congress’ Commerce Clause by substantially restricting interstate commerce.

Division of powers overshadowed by civil liberties in analysis of most contentious sections

However, where it falls on Judge Bolton to determine the constitutionality of the most controversial sections, Sections 2 and 6, the decision turns heavily on the civil liberties of law-abiding aliens and citizens. Part of Section 2 (A.R.S. § 11-1051(B)) requires that police officers check the immigration status of arrested individuals and to make reasonable attempts to do so in the case of persons stopped (where reasonable suspicion exists). Judge Bolton relies heavily on the United States Supreme Court decision of Hines v. Davidowitz, 312 U.S. 52 (1941), in declaring that Congress’ purpose in regulating immigration is

to protect the personal liberties of law-abiding aliens through one uniform national . . . system and to leave them free from the possibility of inquisitorial practices and police surveillance.

Requiring Arizona police officers to verify the immigration status of every person arrested would restrict the liberty of legal residents, placing an undue burden on their freedom from intrusive police practices. Furthermore, checking immigration statuses would place a burden on federal agencies and resources and divert them from other federal responsibilities. Judge Bolton thus enjoins this entire part of Section 2.

Likewise, Section 6 of S.B. 1070 allows police officers to make a warrantless arrest of a person they have probable cause to believe “has committed any public offense that makes the person removable from the United States.” Judge Bolton writes that requiring Arizona officers to assess whether a public offense would make an alien removable from the United States is a task of “considerable complexity” with which officers have no familiarity. Although having officers make such an assessment, an act that falls principally into the federal government’s realm of knowledge, could be aptly squared as a jurisdictional matter, Judge Bolton’s reasoning intriguingly circles back to the argument that this places a “distinct, unusual and extraordinary burden” on legal residents. The judge holds that there is a considerable likelihood that Arizona police officers would wrongfully arrest law-abiding aliens. Again, the judgment returns to the governing notion of shielding the civil liberties of law-abiding individuals, even if this may mean reducing the scope of immigration law enforcement on illegal residents.

The Clincher

Ultimately, the order enjoins the sections of S.B. 1070 that are central to the growing national controversy and lets slip the amendments that do little to change existing Arizona state law. This is not a simple dispute concerning federal and jurisdictional powers, however. The judgment also exposes the underlying debate that struggles to define the civil liberties of both legal and, though not openly expressed in the decision, illegal resident immigrants. I commend Judge Bolton’s cautious yet incisive judgment for a case loaded with barefaced and sensitive issues.

The order was released just before S.B. 1070 would have taken effect on July 29. Arizona’s appeal is scheduled to be heard by three judges of the Ninth Circuit the first week of November in San Francisco, and court observers are already chiming Supreme Court tolls for a case likely to be the precedent of many to come. If the case continues to be strongly rooted in Hines, Arizona may be headed for a few more upsets, particularly with respect to Sections 2 and 6. May the judicial forecasts commence!