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“I love these members. They get up and say, ‘Read the bill.' What good is reading the bill if it's a thousand pages and you don't have two days and two lawyers to find out what it means after you read the bill?” — Rep. John Conyers, on the recently enacted health care legislation.
Unlike the health care bill, the Arizona immigration statute which has been partially blocked by a federal judge is only about 12 pages long, and the judge's decision is only 36.
So, since immigration laws and their enforcement affect so many people and entities, including schools, employers, hospitals and welfare agencies, I decided to “read the bill” and, also, the court decision, and to try to briefly summarize what they each say.
The Arizona bill contains the following key provisions:
• No Arizona law enforcement agency may limit the enforcement of federal immigration laws to less than the full extent permitted by federal law. (This seems to bar Arizona municipalities from declaring themselves “sanctuary cities.”)
• For any lawful stop, detention or arrest where “reasonable suspicion exists” that the person is an alien unlawfully present in the United States, a reasonable attempt should be made to determine the person's immigration status. (A person is presumed not to be an illegal alien if he can provide a valid Arizona driver's license, tribal identification or federal “green card.”)
The second sentence of this provision, largely ignored by the media, states: “Any person who is arrested shall have the person's immigration status determined before the person is released.”
• It is unlawful for an alien to fail to carry a federally required registration card.
• A law enforcement officer may not consider race or nationality in enforcing the new law, except to the extent constitutionally permitted.
• No person who is committing a crime may intentionally transport or harbor an illegal alien or assist such person in entering the U.S. illegally.
• Unauthorized aliens may not apply for or perform work.
The United States sued in an Arizona federal district court to block enforcement of the law, on the sole ground that regulation of immigration is vested exclusively in the federal government.
On July 28, District Court Judge Susan R. Bolton issued a preliminary injunction barring enforcement of most of the Arizona statute. She did not block the provision relating to intentional transportation, harboring or assisting entry of illegal aliens; nor did she block the provision which targets “sanctuary cities.”
She did block the provision requiring that an officer make a reasonable attempt to determine immigration status of someone lawfully stopped, detained or arrested; and the provisions making it illegal for an alien to fail to carry registration papers, or to apply for or perform work.
Her written opinion stated the following grounds:
• The provision that “any person who is arrested” must have his immigration status checked improperly burdens lawfully-present aliens, and also law enforcement agencies, because the bill requires an immigration check on every single person arrested, whether or not suspected of being an illegal alien.
• The provision requiring an immigration check whenever a person is stopped, detained or arrested if there is a “reasonable suspicion” that such person is an illegal alien would be an unacceptable burden on lawful visitors who will not have readily available documentation, would burden federal agencies (which are required by law to respond to states' immigration inquiries), and would unfairly apply to such minor offenses as jaywalking or failing to have a dog on a leash.
• The provision making it a crime for a person to fail to carry a “green card” impermissibly makes it a state crime to violate a federal law.
• The prohibition on unlawful aliens' seeking or accepting work conflicts with a comprehensive federal scheme and is therefore preempted by federal law.
Judge Bolton's decision creates only a temporary injunction; in other words, while she found the United States was “likely to prevail” on some claims, final determination will only be made after a full trial.
It seems clear that neither the Arizona law nor Judge Bolton's decision was as extreme or ill-conceived as the political left or right, respectively, would have it.
Or to quote the great Yogi Berra (and also musician Lenny Kravitz, although that's not important now), “It ain't over ‘til it's over.”
Some of the Arizona law's provisions will probably survive the full trial, and others conceivably could be amended to accomplish Arizona's legitimate objectives without occupying an area reserved to the federal government.
In addition, Judge Bolton will probably have to deal with an issue not mentioned in her decision: Does Arizona not have the right to protect its citizens when the federal government has declined to exercise its preemptive jurisdiction?
Nevada County resident Peter C. Bronson is president of the Nevada County Bar Association and practices law in the area of creditors' rights, insolvency and business litigation. Contact him at pbronson@pbronsonlaw.com.
Unlike the health care bill, the Arizona immigration statute which has been partially blocked by a federal judge is only about 12 pages long, and the judge's decision is only 36.
So, since immigration laws and their enforcement affect so many people and entities, including schools, employers, hospitals and welfare agencies, I decided to “read the bill” and, also, the court decision, and to try to briefly summarize what they each say.
The Arizona bill contains the following key provisions:
• No Arizona law enforcement agency may limit the enforcement of federal immigration laws to less than the full extent permitted by federal law. (This seems to bar Arizona municipalities from declaring themselves “sanctuary cities.”)
• For any lawful stop, detention or arrest where “reasonable suspicion exists” that the person is an alien unlawfully present in the United States, a reasonable attempt should be made to determine the person's immigration status. (A person is presumed not to be an illegal alien if he can provide a valid Arizona driver's license, tribal identification or federal “green card.”)
The second sentence of this provision, largely ignored by the media, states: “Any person who is arrested shall have the person's immigration status determined before the person is released.”
• It is unlawful for an alien to fail to carry a federally required registration card.
• A law enforcement officer may not consider race or nationality in enforcing the new law, except to the extent constitutionally permitted.
• No person who is committing a crime may intentionally transport or harbor an illegal alien or assist such person in entering the U.S. illegally.
• Unauthorized aliens may not apply for or perform work.
The United States sued in an Arizona federal district court to block enforcement of the law, on the sole ground that regulation of immigration is vested exclusively in the federal government.
On July 28, District Court Judge Susan R. Bolton issued a preliminary injunction barring enforcement of most of the Arizona statute. She did not block the provision relating to intentional transportation, harboring or assisting entry of illegal aliens; nor did she block the provision which targets “sanctuary cities.”
She did block the provision requiring that an officer make a reasonable attempt to determine immigration status of someone lawfully stopped, detained or arrested; and the provisions making it illegal for an alien to fail to carry registration papers, or to apply for or perform work.
Her written opinion stated the following grounds:
• The provision that “any person who is arrested” must have his immigration status checked improperly burdens lawfully-present aliens, and also law enforcement agencies, because the bill requires an immigration check on every single person arrested, whether or not suspected of being an illegal alien.
• The provision requiring an immigration check whenever a person is stopped, detained or arrested if there is a “reasonable suspicion” that such person is an illegal alien would be an unacceptable burden on lawful visitors who will not have readily available documentation, would burden federal agencies (which are required by law to respond to states' immigration inquiries), and would unfairly apply to such minor offenses as jaywalking or failing to have a dog on a leash.
• The provision making it a crime for a person to fail to carry a “green card” impermissibly makes it a state crime to violate a federal law.
• The prohibition on unlawful aliens' seeking or accepting work conflicts with a comprehensive federal scheme and is therefore preempted by federal law.
Judge Bolton's decision creates only a temporary injunction; in other words, while she found the United States was “likely to prevail” on some claims, final determination will only be made after a full trial.
It seems clear that neither the Arizona law nor Judge Bolton's decision was as extreme or ill-conceived as the political left or right, respectively, would have it.
Or to quote the great Yogi Berra (and also musician Lenny Kravitz, although that's not important now), “It ain't over ‘til it's over.”
Some of the Arizona law's provisions will probably survive the full trial, and others conceivably could be amended to accomplish Arizona's legitimate objectives without occupying an area reserved to the federal government.
In addition, Judge Bolton will probably have to deal with an issue not mentioned in her decision: Does Arizona not have the right to protect its citizens when the federal government has declined to exercise its preemptive jurisdiction?
Nevada County resident Peter C. Bronson is president of the Nevada County Bar Association and practices law in the area of creditors' rights, insolvency and business litigation. Contact him at pbronson@pbronsonlaw.com.
