Alliance of White Anti-Racists Everywhere – Los Angeles
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Supreme Court Weighs Case That’s Likely Precursor to SB 1070
01 year ago
The Supreme Court heard arguments on Wednesday in a case that could have significant implications for the rights of state and local governments to impose their own immigration laws such as notorious Arizona’s SB 1080. The case considers the legality of another Arizona law, which enacts strict sanctions on employers that hire undocumented immigrants. It’s just one of a series of crucial immigration cases that are winding their way through the courts now.
On Wednesday, an unlikely cohort of litigants including the American Civil Liberties Union, the Obama administration and the United States Chamber of Commerce made oral arguments in Chamber of Commerce v. Whiting. The case considers the Legal Arizona Workers Act, a 2007 Arizona law that requires employers to check the immigration status of new hires through a federal employer database called E-Verify. Employers who fail to do so or knowingly hire undocumented immigrants are slapped with sanctions, including possible revocation of their business licenses.
The law was previously upheld by a circuit court. The Supreme Court is likely to allow the law to stand as well, either through a majority ruling or as a result of a tie, but how it does so will matter greatly.
The administration and others are challenging the law on several grounds. Mainly, they argue, it preempts federal law, specifically a section of the 1986 Immigration Control and Reform Act that grants the federal government full and exclusive rights to enforce immigration policy. Similarly, the challengers argue that the state oversteps its authority by requiring businesses to check E-Verify, because the the the federal government has deemed that program voluntary. These are the same arguments the Obama administration is making in its case against SB 1070.
Beyond the feds’ preemption arguments, civil rights groups say the law encourages racial discrimination. Omar C. Jadwat of the ACLU said in a statement to press, the law “creates an unacceptable risk of discrimination against lawful workers” who may not be hired because they are Latino or speak with an accent.
Arizona’s solicitor general has countered that the1986 law maintained a singular exception on the question of preemption that allows states to continue to administer business regulations through “licensing and similar laws.” Arizona posits that the exception also permits the state to revoke those licenses. Arizona Gov. Jan Brewer put it this way: “Certainly we do issue licenses, we do do that, and if we giveth, we can taketh away.”
Arizona also argues that the policy simply picks up the slack left by the federal government, which, the state says, has failed to enforce immigration laws. Again, that echoes the state’s defense in the suits against SB 1070.
The conservative Justice Antonin Scalia appeared to agree with the latter claims on federal inaction.
“Arizona and other states are in serious trouble financially and for other reasons because of unrestrained immigration,” said Scalia. “I agree this step is massive, and one wouldn’t have expected it to occur under this statute. But expectations change when the federal government has simply not enforced the immigration restrictions.”
Justice Breyer, on the other hand, expressed concern over the potential for the law to facilitate racial discrimination.
“How can you reconcile that intent to prevent discrimination against people because of their appearance or accent?” he asked. “How do you reconcile that with Arizona’s law?”
Only eight of the nine justices will rule. Justice Elena Kagan recused herself from the decision because she’d previously worked on the case when she served as solicitor general. Four Justices are poised to vote to uphold the law, while three appear to be against. Justice Anthony Kennedy is the likely swing vote, and his responses during the case did not clearly indicate which way he’d fall.
Kennedy said there is “no limitation on what the states can decide is a license,” reports the NY Times.
But, the NYT reports:
Justice Kennedy objected to a second part of the Arizona law, this one requiring employers to use an otherwise voluntary electronic federal system meant to verify employment status known as E-Verify.
“It seems to me that’s almost a classic example of a state doing something that is inconsistent with a federal requirement,” he said.
If Kennedy opines in favor of the Arizona law, the court is likely to rule 5-3 to grant Arizona the right to impose employer sanctions. Such a ruling would also set a precedent for future cases that pertain to state’s ability to enforce immigration laws and would offer states and localities a green light to pass similar legislation.
If Kennedy agrees with the challengers, the court is likely to be tied in a 4-4 ruling. That would leave the lower courts previous decision intact and, in effect, let Arizona continue doing what it already does. But a tie would not set any precedent for future cases and, in as much as Justice Kagan is expected to rule in the future with the liberal side of the bench, might send some signal as to how the court will rule on future cases, like SB 1070, involving immigration and local enforcement.
Ninth Circuit Gives Skeptical Ear to Arguments on SB1070
01 year ago
Yesterday, the Ninth Circuit Court of Appeals heard oral arguments from the federal government and the state of Arizona over the anti-immigrant law SB 1070. The appellate court is examining U.S. District Court Judge Susan Bolton’s decision to enjoin its most controversial portions back in July.
SB 1070 makes it a state crime to be undocumented in Arizona, and gives law enforcement officers the right to question and investigate a person’s immigration status while they’re enforcing other state and local laws, and even civil codes. The law also demands that a person be kept in custody while law enforcement determines their immigration status. These are the provisions being examined by the appellate court right now.
The judges asked pointed questions to both sides, suggesting that they may both affirm portions of Judge Bolton’s injunction on SB 1070 and reverse others. With John Bouma, the attorney representing Arizona and defending SB 1070, the judges seemed concerned about the portion of SB 1070 which makes it a crime to not carry around identification or proof of a person’s immigration status.
At issue is whether a state has the right to even enforce SB 1070. The federal government has argued that much of SB 1070 is preempted–that is, that the state is overstepping its legal boundaries by creating and enforcing its own immigration laws because that power rests solely with the federal government.
Judge Carlos Bea questioned Arizona’s “argument that a state can look at whether the federal government is enforcing laws, and if not, can enforce laws for the federal government.” Judge Bea asked Bouma if he thought it permissible for the state of California to go after him if he failed to pay his federal income taxes.
“I don’t think California would be particularly interested in enforcing federal income taxes,” Bouma responded. But with respect to Arizona, and with respect to the issue of immigration, Bouma argued that circumstances were different “because Arizona is bearing the brunt of the federal government’s failure to enforce [immigration laws.]“
The panel of judges seemed unconvinced about the constitutionality of the portions of SB 1070 that make it a state crime for a person to be caught without proof of their immigration status, and the portions of the law that make it a crime for undocumented immigrants to work in the state.
Yet when Edwin Kneedler, attorney for the federal government, stood before the panel, he got his own difficult line of questioning.
The federal government has argued that SB 1070 messes with its tiered immigration-enforcement scheme, which prioritizes the rounding up and deportation of people with criminal convictions on their record. SB 1070 would flood ICE offices with too many people who are not top priorities for deportation.
Kneedler also said that the federal government is worried that asking local law enforcement officials to investigate people’s immigration status would harm their other policing work. But Judge Carlos Bea wondered why a state couldn’t tell its law enforcement officers what to focus on and how they wanted their law enforcement to act. “It’s how the state wants to use its people,” said Bea.
Judge Noonan said to Kneedler: “You keep saying, ‘A state officer is told to do something.’ That’s not a matter of preemption. If the federal government wants to preempt its field, Congress can say so.”
Arizona Gov. Jan Brewer was also in attendance. She flew out to San Francisco for the hearing a day before Election Day back home in Arizona, where she is expected to beat Democratic gubernatorial nominee and Arizona Attorney General Terry Goddard easily.
Meanwhile, outside the downtown San Francisco courthouse, hundreds of people from both sides gathered to protest. The appellate court does not have a deadline to return with a ruling, but whatever the pane decides is certain to be appealed to the Supreme Court.
Ariz. Rep. Grijalva Gets Package Covered in Swastikas and Powder
01 year ago
Tucson news station KVOA reported yesterday that Arizona Rep. Raul Grijalva received a slip of papers with swastikas drawn on them and suspicious white powder at his Tucson office. Grijalva later told KVOA that the powder was toxic. The state lawmaker’s office was shut down after the envelope was discovered.
“It’s really distressing. You know, I understand politics, I understand what’s going on out there,” Grijalva told KVOA. “But for people to feel that their way of expression is to hurt other people physically and endanger other people physically is a really sad commentary on how we’re doing politics right now.”
News of the mysterious package comes amidst reports of rising hate crimes against Latinos in the country.
Grijalva is currently seeking his fifth term, and is no stranger to assaults on his office.
In June, a Phoenix man was indicted for threatening to kidnap and murder Grijalva. This July Grijalva’s Yuma office had to be shut down because someone shot a bullet through the window. The incident happened a day after Grijalva called for an end to the boycott of Arizona businesses.
Grijalva initially demanded the country boycott Arizona in the wake of SB 1070′s passage in April, but backed off of his demands when Judge Susan Bolton issued an injunction that blocked part of the law from going into effect.
SB 1070 grants police officers the right to question and detain anyone they have “reasonable suspicion” to believe is in the country without papers. It creates a new class of state crimes that criminalizes people who are undocumented. The state of Arizona is facing five separate lawsuits to defend the law, including one from the federal government.
Judge Advances Civil Rights Groups’ SB 1070 Lawsuit
01 year ago
On Friday a federal judge issued a ruling allowing a lawsuit against SB 1070 brought by a coalition of civil rights groups to move forward. U.S. District Court Judge Susan Bolton partially struck down motions from Arizona Gov. Jan Brewer, Maricopa County Sheriff Joe Arpaio and Pinal County Sheriff Paul Babeu to have the case dismissed. (Scroll down for a breakdown of the lawsuits against SB 1070.)
Bolton dismissed complaints from plaintiffs that said that SB 1070 would restrict immigrants’ speech and travel. The groups had argued that SB 1070 would make people afraid to speak languages besides English, and that is why it had to be struck down. Bolton rejected that complaint because she said the civil rights coalition was not the correct party to be bringing such claims. Nevertheless, civil rights groups are celebrating the broader ruling.
“Today’s order is an important first step in challenging this unconstitutional law,” the coalition said in a joint statement Friday. “The civil rights coalition will continue its legal fight until all of SB 1070 is taken off the books.”
The ACLU, National Immigration Law Center, Mexican American Legal Defense Fund, Asian Pacific American Legal Center, and NAACP filed their case against Arizona in May, charging that the state violated the Constitution by passing its own immigration law. The coalition of civil rights groups have argued that only the federal government has the right to create and enforce immigration policy.
SB 1070 would allow law enforcement to pull over and question anyone suspected of being in the state without papers. If the state prevails, people will be detained until their immigration status is determined and, if it turns out they don’t have the correct paperwork, they’ll face a new class of statutes that criminalize their undocumented status.
In July, Judge Bolton issued a partial injunction against SB 1070 in response to the Department of Justice’s suit, which charges that the law unconstitutionally preempts federal authority. Bolton blocked the most serious provisions. But other parts of SB 1070 are currently in effect. Portions of the law target day laborers, institute stricter employer sanctions and make it a crime to give a ride to someone who is undocumented.
Since then, Bolton has thrown out two other lawsuits against SB 1070. One was filed by a researcher in Washington, D.C., who said he feared racial profiling if he traveled to Arizona (Frisancho v. Brewer below). The second dismissed lawsuit was brought by a Tuscon police officer (Escobar v Brewer below). There are currently five pending legal challenges against the law.
Commenter "Migzilla" Gets Back to Basics on Racial Profiling
01 year ago
We’re talking a lot about racial profiling at ColorLines lately. There’s SB 1070, and today we posted a video of young black men in Brooklyn describing how they live with being profiled by NYPD, as a matter of policy, every day. It’s easy to get lost in this conversation. I was speaking with a reporter about Arizona last week and was reminded that, too often, we skip past the basic principles and into the ideological and legalistic debates. We fail to answer, simply, what’s wrong with profiling? Why shouldn’t NYPD stop lots of young black men in a high-crime neighborhood where lots of legitimate suspects are young black men? Why shouldn’t cops in Arizona be able to make policing choices based on assumptions about who is likely to be undocumented? Well, ColorLines commenter Migzilla Candia breaks it down in a comment thread on Joe Arpaio’s arrest-a-thon last week:
We all make those assumptions. But do you want a law based on assumptions? Maybe you’re OK with that, but many aren’t. That’s the point of this debate. Maybe most people would assume a Muslim at the airport could be a terrorist (which of course is wrong), but do you think it OK for cops to be allowed to make those assumptions too? Should cops be able to harass Muslims IN CASE they are terrorists? Should they follow blacks inside a store in case they are stealing? Should women be suspicious of all men because they may be rapists? How about Catholic priests? Are they all molestors? The answer is obviously NO. So why don’t Hispanics deserve this same level of respect? Yes, we all make assumptions, but cops are not always allowed to.
What’s Next for Arizona’s SB 1070?
01 year ago
This morning at 12:01 a.m., SB 1070 went into effect in the state of Arizona. The most controversial portions of the law were blocked by Judge Susan Bolton when she issued her injunction ruling yesterday. But protesters are streaming into the Phoenix area today from all over the Southwest for a day of action and civil disobedience. Several groups have vowed not to comply with SB 1070.
Meanwhile, the modified law went into effect alongside promises from Maricopa County Sheriff Joe Arpaio to conduct another of his infamous immigration sweeps today. It will be his seventeenth. “I don’t think the activists should be celebrating in the streets yet,” Arpaio told the Arizona Capitol Times.
It should be an interesting day in the Grand Canyon State.
In its original language, SB 1070 would have made it a state crime to be caught without papers in Arizona, and would have allowed police officers to question any person’s legal status while enforcing state and local law, and even civil code–like failing to recycle, or not cleaning up the weeds in your front yard. The law would have mandated that a police officer question any person they had “reasonable suspicion” to believe was undocumented. Further, a person who was arrested would have to be held in custody until their immigration status was confirmed. These are the parts of SB 1070 that were enjoined yesterday. Judge Bolton blocked those portions temporarily so she can preside over the lengthy court proceedings to now determine the constitutionality of those provisions.
Arizona Gov. Jan Brewer, who signed SB 1070 into law in April to great fanfare and controversy, dismissed the temporary injunction as “a little bump in the road.”
“The federal government got relief from the courts not to do their job,” she told reporters yesterday. “They need to step up, the feds do, to do the job they have the responsibility to do.” She indicated that she planned to immediately appeal the injunction. If filed, that appeal will be heard by the Ninth Circuit Court of Appeals.
“This is an injunction, they haven’t heard the merits of the bill,” Brewer said. “This is just an injunction, this is just an injunction.”
The portions of SB 1070 that still stand targed day laborers. They include a new statewide ban on entering a car when hired to work, and conversely, hiring someone who’s entering a car that would obstruct the flow of traffic. Judge Bolton blocked another part that makes it illegal to seek labor.
Bolton did not enjoin the portions of SB 1070 that allow for the impounding of a car that’s found to belong to a person who’s undocumented or is used to transport people who are undocumented. Neither did Bolton enjoin a section that amends employer sanctions and adds new provisions against transporting and harboring undocumented immigrants. A provision barring cities in Arizona from forming “sanctuary” cities was also allowed to stand.
Yesterday’s ruling was a response to the Department of Justice lawsuit against Arizona, and there are three outstanding motions for injunctions that Bolton did not respond to, although she mentioned the other cases in her ruling. Linton Joaquin, an attorney with the National Immigrant Law Center, which is one of the organizational plaintiffs in the class action lawsuit, said on a telebriefing yesterday that there’s still a long road ahead for SB 1070.
Attorneys from both sides will now return to Bolton’s courtroom to begin the real proceedings, debating the constitutionality of the disputed portions of SB 1070–both those that were enjoined and those that were allowed to go into effect. That process could take months.
The Department of Justice’s lawsuit against the state of Arizona rests on one clause in the Constitution, which says unequivocally that the federal government alone has the right to create and enforce immigration law. Of course there are many exceptions and tests to what’s called the Supremacy Clause–complicated somewhat by the fact that the federal government actually does authorize local governments to assist in immigration enforcement, in the form of 287(g) and Secure Communities programs. The collection of six other lawsuits against SB 1070 charge that the law contains a slew of other constitutional violations (see our graphic breaking those suits down).
While attorneys hunker down for a lengthy legal battle, activists are ready to take to the streets today. Joaquin said now is also the time for people to diligently document their interactions with police and law enforcement. Already, reports abound of Arizonans who’ve been stopped by the police asking for their papers.
People are already gathered in Phoenix today to join a hundred-day vigil that’s been going ever since Brewer signed SB 1070 into law on April 23. People met at 6 a.m. for a mass before marching to Sheriff Arpaio’s office at 8 a.m. Vans of supporters are caravanning into the state, and dozens of solidarity actions have been planned from Brooklyn to Los Angeles today. We’ll have images from those events later today.
Immigrant rights groups in Arizona are far from ready to claim victory yet. And many are trying to use the momentum against SB 1070 to demand an end to 287(g) and Secure Communities programs that allow for SB 1070-like enforcement and have been quietly unveiled in hundreds of cities. But Judge Bolton’s ruling gives reason for cautious hope, at least in the short term.
“The judge ruled that Arizona cannot decide we are going to be a ‘papers please’ state for every person of color,” said Isabel Garcia, a co-chair of the immigrant rights organization Derechos Humanos.
“We have the wind on our backs in a very, very long road to restoring civil rights protections to the state of Arizona,” National Day Laborer Organizing Network legal director Chris Newman said yesterday. “We will continue all of our efforts on all fronts, legal, political and community organizing, to restore civil rights to immigrants and people of color in the state of Arizona.”
The temperatures are already in the 90s in Phoenix, and there’s talk of possible thunderstorms today–whether they’ll come rom the skies or from the rising immigrant rights movement, it’s hard to tell.
A Breakdown of Legal Challenges to SB 1070
01 year ago
A federal judge has blocked the most controversial portions of the law while lawyers battle over it in court. But the case–or cases–move on. Here’s a look at the seven lawsuits challenging Arizona’s anti-immigrant law, along with a breakdown of the constitutional protections the critics argue the law violates.
Federal Judge Blocks Portions of SB 1070
01 year ago
[UPDATE 6:53pm ET] Attorneys on both sides of the lawsuit are already back behind their desks, sorting out the next steps in the legal challenge. Arizona Gov. Jan Brewer, speaking just after the ruling was announced, called it a “small bump in the road” and was undeterred by the partial injunction. Brewer announced immediate plans to appeal the injunction.
The National Immigration Forum praised the ruling as a “temporary victory,” and took the opportunity to plug comprehensive immigration reform. The D.C.-based immigration reform coalition Reform Immigration for America held a call today to discuss to injunction and representatives from the group called the ruling a “decisive victory” against Arizona, and the beginning of a shifting “tide turning against the Arizona law.”
Meanwhile, the mood was decidedly less celebratory in Arizona, where the modified SB 1070 is set to go into effect tonight at 12:01am. “The partial and temporary blocking of a law that should’ve never existed is welcome but in no way a victory,” said Pablo Alvarado, executive director of the National Day Laborer Organizing Network. “The conditions that created SB 1070 remain and are only worsened by the decision today.”
The last word in reactions will go to Carlos Garcia, a leader with the immigrant rights organizing group Puente: “In Maricopa County, we’ve been living under 1070 conditions with Sheriff Arpaio for years. Many are celebrating today because some sections are being blocked. While they can breathe a sigh of relief for the minimal injunction, our breath catches with the added boots on our communities’ necks.”
The disconnect in messaging between Beltway groups and organizations on the ground stems from differences of opinion in strategy. Large immigrant rights groups remain invested in comprehensive immigration reform while other groups like NDLON and Puente have instead put their resources toward stopping SB 1070 and its cousins 287(g) and Secure Communities, the federal enforcement programs that link local law enforcement and ICE.
Both NDLON and Puente continue to press people not to comply with SB 1070 when it goes into effect tonight.
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[UPDATE 5:03pm ET] The Department of Homeland Security responded to Judge Bolton’s injunction ruling with this statement:
The court’s decision to enjoin most of SB1070 correctly affirms the federal government’s responsibilities in enforcing our nation’s immigration laws. Over the past eighteen months, this Administration has dedicated unprecedented resources to secure the border, and we will continue to work to take decisive action to disrupt criminal organizations and the networks they exploit. DHS will enforce federal immigration laws in Arizona and around the country in smart, effective ways that focus our resources on criminal aliens who pose a public safety threat and employers who knowingly hire illegal labor, as well as continue to secure our border.
“ICE works every day with local law enforcement across the country to assist them in making their communities safer and we will continue do so in Arizona. At the same time, we will continue to increase resources in Arizona by complementing the National Guard deployment set to begin on Aug. 1 with the deployment of hundreds of additional Immigration and Customs Enforcement agents, Border Patrol agents and other law enforcement personnel that will aid in our continuing efforts to conduct outbound inspections, patrol challenging terrain, and interdict illicit smugglers. We are focused on smart effective immigration and border enforcement while we work with Congress toward the type of bipartisan comprehensive reform that will provide true security and establish accountability and responsibility in our immigration system at the national level.”
The White House has declined to comment on the ruling today.
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[UPDATE 3:27pm ET] Immigrant rights advocates are predictably relieved at Judge Bolton’s injunction ruling today, which blocked the most controversial portions of SB 1070 from going into effect while attorneys battle over their constitutionality in the courts.
“Those enjoined provisions constituted their principle objectives,” said Isabel Garcia, co-chair of the immigrant rights group Derechos Humanos. “It’s a mixed bag, however. But the judge decided that Arizona cannot just decide we are going to be a “papers please” state for every person of color.”
“The pressure and anxiety shouldered by Arizona families, businesses, churches and law enforcement agencies has been lifted for the time-being,” said Tucson-based Border Action Network’s executive director Jennifer Allen in a statement. “While there are still provisions of the law that we are concerned with and will monitor, we are elated that Judge Bolton blocked the most discriminatory, far-reaching provisions.” The Border Action Network is one of the organizational plaintiffs in the class action lawsuit challenging SB 1070.
The group’s original schedule of actions to protest SB 1070 will continue tomorrow as planned. Except tomorrow, people will also be “celebrating the court’s recognition of the law’s profoundly negative impact on the public interest,” said Allen.
Garcia added that the bigger political landscape beyond SB 1070 is grim; even if the law is struck down eventually, she says there is much work ahead. “We’ve got a move by even our own president to militarize the border some more,” Garcia said, referring the Obama’s plan to send 1,200 National Guard to the border. They’re set to be deployed later this week. Garcia said that today’s ruling provided an opportunity to keep fight back against anti-immigrant legislation.
But everyone will be going back to court soon for what promises to be a long legal battle. Chris Newman, legal director for NDLON, summed up the prevailing sentiments after today’s ruling: “We have the wind on our backs in a very, very long road to restoring civil rights protections to the state of Arizona.”
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[UPDATE 2:41pm ET] Judge Bolton’s 36-page ruling will take a minute to sift through, and there is already some confusion about which parts of SB 1070 have been enjoined.
Chris Newman, legal director of the National Day Laborer Organizing Network and one of the plaintiffs in the class-action lawsuit challenging SB 1070, said that overall, “the most pernicious parts” of the law were enjoined. “There is reason for optimism that we will restore civil rights to immigrants and people of color in the state of Arizona,” he said.
SB 1070 made it a crime for day laborers to seek work in Arizona, but only part of that portion of SB 1070 was blocked. While Bolton enjoined a portion of SB 1070 that makes it illegal for those who are undocumented to seek and be paid for work, there was much more language regarding day laborers. Newman explained what’s left over this way: “It is now a criminal offense for day laborers if they are obstructing traffic.” He added, “A necessary element of this new crime is that they be obstructing traffic while soliciting work. We want to put Joe Arpaio on notice that merely because people are looking at day laborers doesn’t mean that they are obstructing traffic.”
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U.S. District Court Judge Susan Bolton issued a ruling today, just hours before SB 1070 is set to go into effect tomorrow, blocking the most stringent portions of the new Arizona law. As passed, SB 1070 makes it a state crime to be undocumented in Arizona and empowers police officers to stop and question anyone they have reasonable suspicion may be in the state without papers. The law also requires law enforcement to question the legal status of anyone they stop while they’re enforcing state and local law, or even civil code.
Judge Bolton granted a partial injunction, which stops a law from being implemented while the courts hash out the constitutionality of the law. Her ruling blocks the requirement that people carry their papers with them at all times; it was an offense punishable with jail time and fines. Bolton also blocked the provision that makes it illegal for those who are undocumented to solicit work. Most importantly, Bolton blocked the portions of SB 1070 that require officers to check a person’s status while enforcing other laws and allow for the warrantless arrests of those believed to have committed “deportable offenses”.
Read the ruling for yourself here (PDF). We’ll have more reactions later today.
An Interactive History of Arizona’s March to SB 1070
01 year ago
Aarti Shahani explained yesterday how Washington spawned Arizona’s SB 1070 by deputizing local cops as immigration officers. That fact leaves the Justice Department appearing to split legal hairs when arguing that Arizona’s law unconstitutionally usurps the feds’ power to control the border. Shahani’s analysis of the DOJ suit against SB 1070 is important, but it’s also worth noting that the door for renegade, state-led immigration enforcement opened long ago. So check out Valeria Fernandez’s interactive timeline of Arizona’s long march toward SB 1070 as well.
In Arizona, Feds Are Fighting a Monster They Built
01 year ago
President Obama’s lawyer has argued more than a hundred cases before the Supreme Court. Last Thursday in Arizona, he got served.
Solicitor General Edwin Kneedler came to challenge SB 1070, the controversial law that would make police arrest and prosecute people suspected of not having papers. It’s set to go into effect on Thursday, July 29. The Justice Department has argued the law oversteps constitutional bounds by creating a parallel immigration system that threatens the federal one and interfering with foreign relations. Latin American governments are up in arms.
Looking federal Judge Susan Bolton straight in the eye, Kneedler indicted Arizona for ending an era of “great cooperation” between federal and state officials. For years, local officers have helped the feds perform deportation duties. “That doesn’t mean the state can make its own immigration law,” he explained.
Before Kneedler could ram home the full force of the Constitution, however, the judge put the plaintiff on defense.
“Arizona can’t remove anybody,” she asserted. “They don’t claim they can.” The bill doesn’t have a section empowering police to dump people over the border; it directs them to investigate and report people without papers. “Why can’t Arizona be as inhospitable as they wish to people who have entered or remained illegally?” Judge Bolton asked.
Arizona was the premiere state partner in a Homeland Security program called 287(g), which since 2002 has made it okay for local law enforcement to ask about papers and detain immigrants without criminal charge. Local police had been picking up immigrants by the thousands, with the feds’ blessing, and it’s in part why the Obama administration has set deportation records. Kneedler argued that SB 1070 is nonetheless an unconstitutional departure from the course they set because the feds are no longer in the lead.
Given 287(g), Bolton wasn’t shocked by the proposition of police asking for papers. She was more interested in sparring with Kneedler over the bureaucratic challenges SB 1070 poses than the constitutional ones. The state bill complicates ICE’s ability to set deportation priorities.
Bolton peppered Kneedler with questions about the line between bureaucratic headache and unconstitutional preemption: “Can you really say this is preempted because they’re going to make too many phone calls [to ICE]?” and “Can you really take issue because it’s burdensome?” and “Can’t ICE use its discretion to do what it wants, which could be nothing?”
Kneedler responded, lamely, “The way these things are coded, it’s not always apparent whether it’s something of time urgency.”
It was more a plea than a comeback: Please stop SB 1070 so that it doesn’t overload ICE’s shoddy databases. We all know the feds created a Frankenstein’s monster, he seemed to argue, but at least it doesn’t violate the Constitution. Arizona’s monster does.
Perhaps. But the feds may have trouble slaying the monster they built.
Gov. Jan Brewer sat front row in the packed courtroom. Though she signed the law in question, her predecessor ought to take more credit.
Homeland Security Secretary Janet Napolitano was nowhere in sight. As Arizona’s chief executive, she was the nation’s first governor to sign up her jailers for 287(g).
With her backing, in 2007, the feds gave the nation’s largest 287(g) contract to Sheriff Joe Arpaio. “If I have to set up tents from here to Mexico, I’ll do it,” Arpaio said, with typical bravado.
It wasn’t an empty threat. A beloved media whore, he’d already made pre-trial detainees wear pink underwear, eat rotten bologna, and stay in makeshift tents under the blazing desert sun. The federal program gave him a new toy gun. Now journalists could watch his deputies round up traffic violators.
Arpaio made a few too many headlines. The Justice Department launched an investigation into racial profiling, which is still pending. Napolitano, as head of Homeland Security, chopped off his street arrest powers, though she left him with the ability to flag people for deportation in the jails. Arpaio, using other state laws that make immigration a crime, continued to arrest people and hand them off for deportation. His and other sheriffs’ use of the program is the subject of on ongoing controversy, in and out of the White House.
Napolitano said of SB 1070 in May, “That’s not the kind of law I would have signed.” She doesn’t see (at least not publicly) a direct line from 287(g) to SB 1070. The National Day Laborer Organizing Network does.
“If she reigned in Arpaio earlier, by removing his 287(g) in its entirety,” said the group’s lawyer Chris Newman, “then the country would be debating whether police involvement at all is okay.” Last year NDLON asked the president to terminate the program, on the premise that it leads to mini-Arpaios nationwide.
SB 1070′s proponents agree, sort of. In front of the courthouse last week, they closely tied the state law to the federal program.
The intent of SB 1070 is “attrition through enforcement.” That is, to scare people without papers into leaving and never coming back. Its author John Kavanagh, however, believes 287(g) is more powerful. Under 287(g), he argued, “You can approach anybody.” SB 1070 requires reasonable suspicion of a crime. Officers “have to comply with greater civil liberties safeguards,” he explained.
Tom Liddy, Arpaio’s attorney, thinks SB 1070 will resuscitate Arpaio’s 287(g) model and put it on steroids. Instead of just 160 deputies making immigration arrests, you get 15,000 officers statewide.
“It makes it very difficult for municipalities to do what the federal government is doing, which is ignore the law,” Liddy said. In his jurisdiction, he believes “it’s not going to be much of a difference.”
As part of the Arizona legal team, he told the judge, “The proper forum for the plaintiffs is the U.S. Congress.” Standing in front of protesters outside the courthouse, Liddy caught a glimpse of the many signs against and few signs for the bill. “The people of Arizona are happy with the way the federal law is,” he said. “They’re not happy with the way it’s being enforced.”
Carlos Garcia dislikes the state law enough to break it. With six other opponents of SB 1070, he unfurled a handmade sign: “We will not comply.”
Just before getting arrested for obstructing traffic, he read from a prepared statement, “We expect [President Barack Obama] to take responsibility for ever opening the door that led to SB 1070 with programs like 287(g).”
Garcia is an organizer with Puente, though he said he was acting as an individual in the civil disobedience.
Before organizing a 100,000-person march in May against SB 1070, Puente organized a 25,000-strong march in January against 287(g). “It’s a moving target,” Garcia said. “And it’s getting worse.” He points to the sections of the state law that will criminally prosecute day laborers seeking work.
Obama’s legal team was the only one to not attend the press conference outside the federal courthouse. There, reporters were ready to add another question to the judge’s list: What happens to the federal program that made it okay for local officers to ask about papers in the first place?
The answer won’t come from Bolton’s much-awaited decision. The fate of 287(g) is in Obama’s court.