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DOJ files suit: Isn’t Arizona’s SB 1070 illegal?

July 09, 2010 By: Keiron Jackman Category: Headlines, Immigration, Law

Political Columnist
ALPEBLOG

Maybe upon reading my post Arizona Immigration Law will be ruled unconstitutional Arizona’s legal and legislative teams decided to reconsider, rather revise SB 1070 in an effort to strengthen its constitutionality. Wishful thinking! Nevertheless the effort to clean up SB 1070 falls short of constitutionality leaving an opening for the Justice Department to deliver a case-ending one-two punch in court.

The Justice Department’s suit, which was filed in Phoenix last Tuesday, challenges the Arizona law on the grounds it “crossed a constitutional line” which gives the federal government “preeminent authority to regulate immigration matters.”

Arizona legislators fail to recognize that even with the amended version of SB 1070 which curtails the jurisdictional bounds of the original bill, the amended bill still encroaches on duties only the federal government is capable of objectively executing. The federal government will make the case that Arizona lacks the resources and know-how to effectively comprehend, prioritize and administer affairs related to immigration enforcement. They will also likely emphasize the fact that the federal government is the only entity that can objectively look at all the illegal immigrants residing in the U.S, and prioritize enforcement in accordance with national security and budgetary constraints. Furthermore illegal immigration is not limited to Arizona but is a complex network that spans throughout all of the U.S.

Additionally, various circumstances and exceptions affect the status of aliens residing in the U.S., which can result in arrests of individuals who are present legally. Instances of natural disasters and political unrest are few of the circumstances that could change public policy on the immigration status of affected aliens. In the absence of the sole authority of the federal government administering immigration enforcement, it is possible that the state’s enforcement of SB 1070 could disrupt these exceptions, because of the time it takes to update the immigration verification systems. Thus a person could be illegally residing in the U.S today, but reside legally tomorrow and the verification system not reflect the status change.

Under the amended SB 1070, a person is presumed an alien if the person does not provide a valid Arizona license or nonoperating identification card, tribal enrollment card, or any valid state or federal identification. The law essentially treats all individuals without identification as an alien, because the law specifically prohibits consideration of any physical attribute when making a determination as to a person’s immigration status such as nationality, race, skin color or any other protected liberty such as religion, sex, age or disability. Thus everyone without identification will be detained or arrested in an attempt to determine the detainee’s immigration status in order to be unprejudiced – so granddad with the WWII Vet cap or the holocaust survivor with the concentration camp tattoo would be detained according to the law if they fail to present or forgot to carry a valid identification card.

Regardless of these seemingly ridiculous circumstances Arizona must be fair and balanced in the administration of SB 1070 or it will leave SB 1070 open to lawsuits. Arizona cannot treat persons residing in its state differently under the law: granddaddy, foreign national, alleged Mexican drug runner, Native American or the young man with thick southern draw will all have to be subjected to the same treatment in the administration of SB 1070.

What complicates the situation further is that the legislation provides no provision that restricts the time in which a law enforcement agency or official has to make a determination on a person’s immigration status. What happens to the person detained or arrested during the verification process is vague. The law seems to grant law enforcement the authority to transport and detain such individuals suspected or deemed an alien during the verification process. This, in practice, can result in both American citizens and legal residents, being arrested or detained for indefinite periods of time while awaiting verification.

What may put the Arizona law down for the count is Arizona’s insistence the laws is not in any way, shape, or form discriminatory. If Arizona sticks to this argument then they are essentially creating a law that is unenforceable and of non-effect as to its legislative intent; because there is no physical attribute that can affirm immigration status, save a confession. When considering a person’s legal status the state lacks critical information only available to the federal government. Enforcement will create an environment in which citizens of this country may be subjected to detention for lack of identification.

Implementing SB 1070 will only result in a massive shift of immigration priorities. Resources will be diverted to Arizona’s immigration verification processes and inquiries. The cost related to transporting, detaining, housing, and adjudicating suspected aliens will rise astronomically. Because of the nature of the law, enforcement resources will be diverted to immigration enforcement and the longstanding mission and purpose of local law enforcement will change. Relationships between law enforcement and minority communities would be negatively impacted by SB 1070. Those communities would avoid contact with police, perpetuating the divide between law enforcement and the communities they serve.

These are some of the concerns Arizona will have to address in court. The federal government will likely be able to clearly demonstrate how SB 1070’s implementation would disrupt the American way of life and infringe on the constitutional liberties guaranteed to persons residing in the United States. The federal government only need to point to a recent DOJ study that show minorities are disproportionally and negatively impacted by laws meant to be enforced uniformly; yet as it pertains to representation, imprisonment and civil violations, minorities are disproportionally harmed. The Justice Department would also highlight the lack of resources, training, and national security information available to Arizona and close with the affirmation that SB 1070 violates the 10th Amendment. Thus, the federal government would most likely make the case and SB 1070 will be ruled unconstitutional.

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11 Comments to “DOJ files suit: Isn’t Arizona’s SB 1070 illegal?”


  1. The federal government is required by law to provide the information on immigration status to states.

    USC 8 1644

    U.S.C. § 1644 : US Code – Section 1644: Communication between State and local government agencies and Immigration and Naturalization Service

    Notwithstanding any other provision of Federal, State, or local
    law, no State or local government entity may be prohibited, or in
    any way restricted, from sending to or receiving from the
    Immigration and Naturalization Service information regarding the
    immigration status, lawful or unlawful, of an alien in the United
    States.

    USC 8 Section 1373

    Communication between government agencies and the Immigration and Naturalization Agency

    (a) In general
    Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
    (b) Additional authority of government entities
    Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
    (1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
    (2) Maintaining such information.
    (3) Exchanging such information with any other Federal, State, or local government entity.
    (c) Obligation to respond to inquiries
    The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

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  2. Keiron, after reading your nonsense pertaining to AZs SB 1070 I suggest you now enlighten yourself and read it.

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  3. Every single one of the objections you raise apply equally to Federal enforcement action. Delays in change of status and those who just “forgot” their driver’s license already affect any ICE enforcement. Arizona doesn’t need verification processes. There is already a 24/7 Federal hotline created just for local law enforcement to utilize.

    You don’t seem to realize there is in place a long standing process for local law enforcement to cooperate with Federal enforcement activity. States already have concurrent enforcement activity in a number of areas, including problems with people in the country illegally. Congress has enacted numerous laws to foster such cooperation and none of them prohibit any action covered by SB 1070.

    And, by the way, just what possible criminal action would the WWII vet or holocaust survivor been engaged to draw the interest of the police? What appearance or action would give the police reasonable suspicion they might be in the country illegally? An inability to speak English? Wearing clothing obviously not purchased in the USA? They ran a stop sign and have no drivers license? If they tell the officer they left their wallet in their other trousers, where is there any reasonable suspicion they are in the country illegally? Reasonable Suspicion as a legal concept has been has been upheld by the Federal courts several times.

    The amendment to SB 1070 did not reduce the jurisdictional bounds. It clarified “lawful contact” for those disposed to misconstrue it’s meaning. You may have read SB 1070 but either did not understand it or are willfully misrepresenting it. The law will almost certainly will be upheld in court just as were the two previous laws. Arizona is 7 – 0 in these cases and there is every reason to believe their streak will continue.

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  4. “The federal government will likely be able to clearly demonstrate how SB 1070’s implementation would disrupt the American way of life and infringe on the constitutional liberties guaranteed to persons residing in the United States.”

    The State of Arizona will likely be able to clearly demonstrate how the Federal Government’s abdication of their responsibility to enforce Federal law has seriously compromised the American way of life in the sovereign State of Arizona and that this negligence has allowed illegal immigration to infringe on the constitutional liberties guaranteed to persons residing in the United States. The State of Arizona need only point to recent studies detailing, in unambiguous terms, the deleterious effects this activity has had on numerous aspects of society, not just in the Sate of Arizona but in many other communities through the nation.

    “…a recent DOJ study that show minorities are disproportionally and negatively impacted by laws meant to be enforced uniformly; yet as it pertains to representation, imprisonment and civil violations, minorities are disproportionally harmed.”

    These laws, meant to be enforced uniformly, are they constitutional? If not, then they should not be laws. Would you agree? If these laws are in fact constitutional but are not being uniformly enforced, then perhaps the problems lie within the Department of Justice itself. Have laws against intimidation, hate speech and inciting violence been uniformly enforced in the case of NBP member Shazzi-whats-his-name?

    Is it not equally possible that the laws are for the most being uniformly enforced and problems with representation and imprisonment have more to do with a higher incidence of violation among minority populations, rather than non-uniform enforcement. A “violation” is of course a “violation”, regardless the ethnicity or economic status of the violator. Would you agree?

    “The Justice Department would also highlight the lack of resources, training, and national security information available to Arizona and close with the affirmation that SB 1070 violates the 10th Amendment. Thus, the federal government would most likely make the case and SB 1070 will be ruled unconstitutional.”

    The Justice Departments effort to highlight the State of Arizona’s lack of resources will not help their case. The State of Arizona will counter this quite handily by pointing to the enormous sums of taxpayer money already being spent to address the problem; without the benefit of evidence of positive results. And, I am sorry, but the inclusion of the term “national security information” is simply hyperbole and has very little bearing on the State of Arizona’s attempt to manage it’s society.

    I’ll admit it sounds as if you have some education in law but, imo attempting to close a case with a simple, “liberal-affirmation” of a 10th Amendment violation doesn’t sound like a coup de’ grace to me.

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  5. Mark Richardson says:

    If Arizona prevails, will they be able to start their own Border Security Agency, fences, buses, holding facilities, courts etc. and present the entire bill to the Federal Government in court?
    It appears so to me and that Obama may have mopped himself into a corner.
    Common sense would dictate that if the Federal Government was obligated to do the job, and they defaulted…that they would still be responsible for the costs of doing so as it is their job…
    And all the States could jump on this one.
    Is this possible?

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  6. Mark, Not likely. Arizona will simply turn persons identified as in the country illegally over to ICE for disposition. In the last couple of days it has surfaced that Rhode Island police have been identifying and turning over to ICE illegals in the same manner as contemplated by SB1070 for a number of years. RI has also prevailed in court against attempts to stop them.

    The DOJ’s actions in this matter are beneath contempt.

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  7. Carol_B says:

    The US DOJ has acted appropriately in filing suit against SB 1070. I thank the author for his excellent column.

    I would like to add ……that although the drivers license of all states are accepted by US airport security as a valid ID, Arizona chooses to decide which state drivers license is acceptable. And..the law applies to everyone accused of a crime before a verdict, so it does not apply to just those guilty of crime.

    Why is Arizona determining which state drivers licenses are valid as identification? Why are they interested in the immigration of status of non residents who may happen to be driving through their state? Nonresidents do not use their state services or pay their taxes. This in and of itself should be outrageous to any advocate of states’ rights.

    Americans should not need passports to travel in the US. Arizona should not deny any state the right to issue drivers licenses according to the qualifications that meet the needs of their state.

    IF Arizona wins its suit, a national ID card in some form, will likely be required. One state simply cannot determine the validity of other state issued documents. It will have to become a federal issue.

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  8. Google 287(g).

    Arizona’s “new” law has been on the books with Federal training and authority for five years.

    Why is Arizona’s compliance with ICE a national tragedy in ignorance today?

    http://www.google.com/m/url?client=ms-android-tmobile-us&ei=0B1CTKCeKpW0tgePqe-4Aw&q=http://www.ice.gov/partners/287g/Section287_g.htm&resnum=1&ved=0CA4QFjAA&usg=AFQjCNGGwBklwrfLZ0G0pZ5tkwr0h2odpQ

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  9. Keiron Jackman says:

    Well I can’t say I told you so, can I? especially after today’s news

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  10. @ Keiron:”…I told you so….”
    No, you can’t. This is only a temporary injunction. No ruling on constitutionality has been made.
    Ohh, and just so you know. The biggest piece of it that was put on hold was the part that MANDATED that LEOs investigate legal l status when the perpetrator met criteria for suspicion. LEOs still have the OPTION to investigate legal status IF they see fit. It is just not mandatory. Besides, if they get arrested by any LEA in Maricopa County (Phoenix), then Sheriff Arpaio (who runs the jail system) will still screen them out and get them deported, even if they are not convicted of the crime they are arrested for (as he has done tens of thousands of times already).

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  11. Keiron Jackman says:

    that’s fair enough. I have no problem with once they are arrested for an arrestable crime, police being able to check on immigration status. But to proactively go out, No! it is not the job on the state. I think I need to write an article pointing out why it is best for this to remain a federal duty rather than a state, and it has to do with the history of state abuse of civil rights and how relatively easy it is to enact major change on a state level. State government can be autocratic at times. SB 1070 would never make it federally, cause its too harsh and unconstitutional, but in a biased southern state, laws that target minorities are easily passed and abused.

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