This afternoon, a federal judge in Arizona granted a preliminary injunction against portions of the Arizona immigration law, SB 1070. Although the federal government had asked for the entire law to be struck down, the judge declined to grant an injunction against the law in its entirety. That is not, however, anything close to a win for Arizona or the American people; it simply means that the law was killed surgically, rather than with a blunt instrument. Reading through the ruling itself, it appears that the judge completely bought into the federal government’s preemption argument, but largely failed to make a convincing case for why its ruling is correct. What follows are my first impressions on select parts of the ruling.
I have wondered since I first heard that the US government was suing Arizona how the federal government would justify standing to bring forth its lawsuit. In making her ruling, the judge offered no insight as to how she found the federal government to have standing. Though I wasn’t surprised by this — neither side briefed the issue (that I saw) and nobody (I’ve seen) has asked this question besides me — I was disappointed.
The question of preemption is fundamentally a question of which law applies to a particular case. In the normal preemption case, a party is challenged under a state law, and mounts a defense saying that the state law is preempted by federal law. If the state law and federal law conflict, the Supremacy Clause dictates that federal law must win, meaning that the state law is preempted. The conflict can either be direct, in the sense that the federal law and state law say two incompatible things, or the preemption could be made by rule, if the federal government affirmatively prevents the states from legislating in a given area. Regardless of how preemption happens, the party harmed was always the person or entity against whom the state law would apply if not for preemption.
Today, without any discussion, the judge has necessarily found that the federal government is itself harmed when a state passes a law which is incompatible with federal law. While it’s possible that I’ve missed something about how standing works, this (implicit) theory of standing seems incredible to me. Last I checked, the federal government doesn’t have a free-standing license to challenge any state law that it doesn’t like.
Of course, for the sake of fairness, I should note that it’s at least plausible that the federal government could claim to be harmed by the “burden” Arizona would place on it by running immigration checks and referring illegal aliens to ICE for processing. However, that only opens the door to some of the challenges posed to the Arizona law, not to the entire thing.
In striking down this section, the judge makes much of a drafting error made in the original SB 1070 and later corrected in a subsequent amendment passed in short succession. The judge is quick to criticize the second sentence of this section, which says that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.” In the law, as amended, this naturally follows the preceding sentence which says what Arizona law enforcement must do “[f]or any lawful stop, detention or arrest.” The judge, however, refused to read the two sentences as a cohesive whole because the original unamended SB 1070 spoke only of “lawful contact,” rather than of “lawful stop, detention or arrest.” There is little reason to doubt that the Arizona legislature intended both forms of that sentence to mean the same thing, and that the amendment was made to clear up the obvious vagueness of what “lawful contact” actually entails. The judge, however, would apparently hold the two phrases to mean something so radically different that the second sentence and first sentence should be read as if they are in entirely separate sections, despite the absurd result that analysis produces.
In striking down this section, the judge turns established precedent squarely on its head. She begins with the following observation:
“States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” De Canas, 424 U.S. at 356. Interpreting De Canas and considering a state law sanctioning employers who hire unauthorized workers, the Ninth Circuit Court of Appeals held that, “because the power to regulate the employment of unauthorized aliens remains within the states’ historic police powers, an assumption of non-preemption appli[ed].” Chicanos Por La Causa I, 544 F.3d at 984; accord Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 (2009) (observing that “[i]n all pre-emption cases, and particularly in those in which Congress has legislated . . . in a field which the States have traditionally occupied, . . . we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress” (internal quotations and citation omitted)).
Having read that paragraph, it would appear that the viability of a law limiting illegal aliens from applying for or performing work should be an easy win for Arizona. Arizona’s law is, after all, directly on point with the above cited cases. By the end of the section, however, the judge has talked herself into the exact opposite conclusion. The linchpin: Arizona attaches a penalty to violating its law.
Although I haven’t read the cited precedent, I find it highly unlikely that the cases above involved state laws with no penalty for non-compliance. After all, police powers are rather meaningless if the police have no power to enforce them.
In sum, this section amounts to unconstitutionality by virtue of hopelessly confusing federal policy. The essence of the judge’s conclusion on this section is that it is simply too hard for Arizona police to know what is and isn’t a removable offense, so that “there is a substantial likelihood that officers will wrongfully arrest legal resident aliens.”
Although I find it illogical to say that this law is preempted as opposed to, say, that it is unconstitutionally vague, I find it hard to fault the judge too deeply for her outcome on this point. From everything I understand, the entire concept of a “removable offense” is, truly, a mess. Nobody really knows whether or not an offense mandates removal of the alien until the final appellate court has its say. This is an area where Congress really should step up and add some much needed clarity to the law.
Overall, the quality of the ruling strikes me as being pretty bad. The key through it all, however, is that the court bought the federal government’s argument of preemption and ran with it to every area of the law where it was necessary to strike the law down. The ruling, however, leaves open some important questions which should be addressed in a final ruling on the merits at some point in the future.