U.S. v. Arizona -- No. CV 10-1413-PHX-SRB

O.K., gang... Bill Barker to the rescue!

Allow me to explain where the President Obama, Attorney General Holder, and U.S. District Judge Susan Bolton go wrong.

Let's start off with some basics:

On July 6, 2010, the United States filed a Complaint with this Court challenging the constitutionality of S.B. 1070, and it also filed a Motion requesting that the Court issue a preliminary injunction to enjoin Arizona from enforcing S.B. 1070 until the Court can make a final determination as to its constitutionality.

The United States argues principally that the power to regulate immigration is vested exclusively in the federal government, and that the provisions of S.B. 1070 are therefore preempted by federal law.

Well... first and foremost, Arizona isn't "regulating" immigration in the sense of contradicting - let alone invalidating - federal immigration law.

Arizona is not declaring that someone deemed a citizen or legal alien resident of the United States by federal statute enjoys anything less than that federally conferred legal status under Arizona law. Nor - on the flip side - is Arizona declaring non-U.S. citizens or non-U.S. legal residents to be legal residents of Arizona

No. What the Arizona law does is backstop existing federal law by piggyback existing federal law.

Where the federal government has not conferred legal resident status - let alone American citizenship - it seems to me that individual states are free to apprehend and hold illegal aliens in police custody until federal authorities meet their responsibilities and deport the illegal aliens from our nation borders.

Applying the proper legal standards based upon well-established precedent, the Court finds that the United States is likely to succeed on the merits in showing that the following Sections of S.B. 1070 are preempted by federal law:

Requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person;

Nope. Doesn't preempt federal law.

Again... it is the federal government itself which defines legal presence in this country. As previously noted, Arizona is in no way attempting to preempt this federal authority.

Creating a crime for the failure to apply for or carry alien registration papers;

Nope. No preemption there. As I understand it, this portion of the Arizona law directly mirrors existing federal law.

Creating a crime for an unauthorized alien to solicit, apply for, or perform work;

Call me crazy... (*CHUCKLE*)... but it seems to me that if federal law forbids a person to be here in the first place than certainly no authority to solicit, apply for, or perform work here - where the person isn't legally allowed to be - exists.

Again, it seems only logical and lawful for Arizona to have every right to propagate additional state law backstopping existing federal law.

Authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States.

Well of course it's a "warrantless arrest." The original legal contact creates the legal pathway for the arrest. (Think of a traffic stop leading to discovery of illegal drugs and/or weapons in plain sight.)

The Court also finds that the United States is likely to suffer irreparable harm if the Court does not preliminarily enjoin enforcement of these Sections of S.B. 1070 and that the balance of equities tips in the United States’ favor considering the public interest. The Court therefore issues a preliminary injunction enjoining the enforcement of the portion of Section 2...

Hogwash!

Congress has created and refined a complex and detailed statutory framework regulating immigration. The federal immigration scheme is largely enacted through the
Immigration and Nationality Act which empowers various federal agencies (including the Department of Justice. Department of Homeland Security, and Department of State) to administer and enforce the immigration laws.

OK. So...??? All Arizona's law does is to make it easier for federal authorities to administer and enforce existing immigration law. (Thus my above comment concerning "pure legal babble.")

Among its many provisions, the INA sets forth the conditions under which a foreign national may be admitted to and remain in the United States. The INA also contains an alien registration system intended to monitor the entry and movement of aliens in the United States. Various actions may subject an alien to being placed in removal proceedings, such as entering the United States without inspection, presenting fraudulent documents at a port of entry, violating the conditions of admission, or engaging in certain other proscribed conduct. Violations of immigration laws may also subject an alien to civil and criminal sanctions. Unlawful presence in the United States is not a federal crime, although it may make the alien removable.

Ya gotta love that last sentence, "Unlawful presence in the United States is not a federal crime..."

Now... one more time... only this time compare and contrast the first two words - "unlawful presence" - with the last four words - "not a federal crime."

So... is it me...??? (Again... if the phrase "legal babble" doesn't cover this sort of nonsense, then what does...???)

Federal alien smuggling laws make it a crime to knowingly bring an unauthorized alien into the country, as well as to harbor such a person or to facilitate unlawful immigration.

If knowingly bringing an unauthorized alien into the country is a crime... then doesn't it follow that "knowing bringing yourself" into the country - "knowing full well you're not authorized to enter the United States" - is likewise a crime...???

Com'on... this is silly! You're "harboring yourself" in violation of the law if you're in the country illegally!

(I'll refrain from the obvious play on words "facilitating oneself.") (*GRIN*)

Congress also created sanctions to be implemented against employers who knowingly employ aliens who are not authorized to work when it passed the Immigration Reform and Control Act in 1986. Federal law contains no criminal sanction for working without authorization, although document fraud is a civil violation.

Ridiculous... though irrelevant. What's ridiculous is that federal law lacks a criminal sanction. Lack of such a federal law doesn't change the fact that it is "unlawful" for the illegal alien to be here in the first place. Arizona is simply following the logic of existing federal law to a logical conclusion which in no way contradicts federal law.

Lack of a specific federal criminal law does not in and of itself negate a state's right to create state criminal law. (*HEADACHE*)

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act which, among other things, created various employment eligibility verification programs.

O.K. So what? I applaud the then-Republican Congress for having passed IIRIRA. Unless Arizona is violating IIRIRA then I don't see the relevance.

Federal immigration law also envisions certain areas of cooperation in immigration enforcement among the federal government and state and local governments.

Yes! Cooperation towards enforcing the law!

DHS has also established the Law Enforcement Support Center which is administered by Immigration and Customs Enforcement and serves as a national enforcement information center, answering queries from state and local officials regarding immigration status.

Fine.

Section 1 of S.B. 1070 states that “the intent of S.B. 1070 is to make attrition through enforcement the public policy of all state and local government agencies in Arizona” and that “the provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.”

Section 1 also states that “there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona.”

Yes... that's correct... Arizona expects the feds to cooperate with Arizona in enforcing federal law... (How "crazy," huh?!) (*SMIRK*)

Section 2 contains twelve separate subsections. Subsection 2(A) prohibits Arizona officials, agencies and political subdivisions from limiting or restricting the enforcement of federal immigration laws. Subsection 2(B) requires officers to make a reasonable attempt, when practicable, to determine an individual’s immigration status during any lawful stop, detention, or arrest where reasonable suspicion exists that the person is unlawfully present in the United States [and] also requires that all persons who are arrested have their immigration status verified prior to release. (Subsections 2(B) and 2(E) provide the process for verifying immigration status and list documents that create a presumption of lawful presence.) Mandatory stops for the purpose of immigration status verification are not required or authorized by Subsection 2(B). Subsection 2(C) requires notification of ICE or Customs and Border Protection whenever an unlawfully present alien is discharged or assessed a monetary obligation. Subsections 2(D) and (F) permit law enforcement to securely transport unlawfully present aliens and send, receive, and exchange information related to immigration status.

O.K. All this sounds kosher.Where's the problem...???

In addition, Subsection 2(H) permits legal residents of Arizona to bring actions in state court “to challenge any official or agency of Arizona [who] adopts or implements a policy or practice that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law.”

(*CLAP-CLAP-CLAP*)

Subsections 2(I) and (J) address the civil penalties arising from such civil suits, and Subsection 2(K) provides that law enforcement officers are indemnified against reasonable costs and expenses incurred by the officer in connection with any suit initiated under this Section unless the officer is found to have acted in bad faith.

O.K. (Again... this all makes perfect sense... where's the problem...???)

Section 3 provides that “a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of federal statutes that require aliens to carry documentation of registration and penalize the willful failure to register. Violation of Section 3 is a class 1 misdemeanor and results in a maximum fine of $100 and a maximum of 20 days in jail for a first violation and up to 30 days in jail for any subsequent violation. Section 3 limits a violator’s eligibility for a suspended sentence, probation, pardon, and commutation of a sentence and requires violators to pay jail costs.

O.K. (*SHRUG*)

In the enforcement of Section 3, immigration status may be determined by a law enforcement officer authorized by the federal government or pursuant to 8 U.S.C.
§ 1373(c). Id. § 13-1509(B). Pursuant to Subsection 3(C), law enforcement officers are not permitted to consider race, color, or national origin in the enforcement of Section 3. Finally, Section 3 does not apply to “a person who maintains authorization from the federal government to remain in the United States.”

O.K. Pretty clear. "...immigration status may be determined by a law enforcement officer authorized by the federal government or pursuant to 8 U.S.C.§ 1373(c)...."

The key word here clearly being "or."

(*SHRUG*)

In Section 4 the Arizona Legislature revised A.R.S. § 13-2319 by adding a provision that permits officers enforcing Arizona’s human smuggling statute to stop any person who is operating a motor vehicle if the officer has reasonable suspicion to believe that the person is in violation of any civil traffic law. Section 4 does not make any other changes or additions to Arizona’s human smuggling statute.

Well... since obviously it was already legal for the police to... er... do their jobs with regard to traffic enforcement... (*SCRATCHING MY HEAD*)

So in other words... more irrelevencies. (*SHRUG*)

(Is this Judge getting paid by the word...???)

Section 5 adds two provisions to the Arizona Criminal Code [which] provide [1)] that it is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway, or highway and is impeding traffic to attempt to hire a person for work at another location; [2)] that it is unlawful for a person to enter a motor vehicle in order to be hired if the vehicle is stopped on a street, roadway, or highway and is impeding traffic.

O.K. Now here I do see a problem - but not a problem connected simply to dealing with illegal aliens but rather a problem as it applies to U.S. citizens and legal resident aliens legally exercising their natural inalienable right to seek and accept work.

This one I'd have to give a great deal of thought to.

Finally, A.R.S. § 13-2928(C) provides that it is unlawful “for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state.” Violation is a class 1 misdemeanor.

Now that's fine. I see no problem with that part of the law.

Section 5 creates A.R.S. § 13-2929, which provides that it is unlawful for a person who is in violation of a criminal offense to: (1) transport or move or attempt to transport or move an alien in Arizona in furtherance of the alien’s unlawful presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or shield an alien from detection in Arizona; and (3) encourage or induce an alien to come to or live in Arizona. In order to violate A.R.S. § 13-2929(A), a person must also know or recklessly disregard the fact that the alien is unlawfully present in the United States. Violation is a class 1 misdemeanor.

Fine.

Section 6 amends A.R.S. § 13-3883 to permit an officer to arrest a person without a warrant if the officer has probable cause to believe that “the person to be arrested has committed any public offense that makes the person removable from the United States.”

Scratch away the legal mumbo jumbo and all the law is saying is that cops have the power to arrest someone they reasonably believe has committed an arrestable offense. (Not exactly breaking news!)

Sections 7, 8, and 9 amend Arizona’s law imposing sanctions on employers who hire unlawfully present aliens. Section 10 amends A.R.S. § 28-3511 to allow for the immobilization or impoundment of vehicles used in the transporting and concealing of unlawfully present aliens where the driver of the vehicle knew or recklessly disregarded the fact that the alien was unlawfully present.

Ya ever hear of Bennis v. Michigan?

(*RUEFUL CHUCKLE*)

Section 11 creates the “gang and immigration intelligence team enforcement mission fund” for civil penalties paid pursuant to Subsection 2(I).

O.K. (*SHRUG*)

Finally, Section 12 provides for the severance of any unconstitutional provisions, and Section 13 provides a short title for the enactment.

Standard operating procedure.

The United States primarily asserts that the statutory provisions contained in S.B. 1070 are preempted by federal law.

Absurd. The statutory provisions contained in S.B. 1070 are complementary to - not in conflict with - federal law.

The Supremacy Clause of the United States Constitution makes federal law “the supreme law of the land.”

Correction: Makes constitutional federal law the supreme law of the land.

That slight "correction" noted, as far as S.B. 1070 is concerned, nothing in the bill conflicts with federal law.

The Supreme Court has consistently ruled that the federal government has broad and exclusive authority to regulate immigration, supported by both enumerated and implied constitutional powers.

Again... the key "regulation" here is federal law itself! The key "regulation" is existing federal law! One more time... S.B. 1070 is complementary to federal law; indeed, it was deliberately designed to mirror federal law - the state of Arizona is doing nothing more than upholding existing federal law!

While holding that "the power to regulate immigration is unquestionably exclusively a federal power,” the Supreme Court concluded that not every state enactment "which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional power, whether latent or exercised.”

O.K. That's fine. It backs up my general contention (not to mention common sense!), but beyond that we're still going around in circles with regard to defining the term "regulation." Arizona is upholding - not challenging - existing federal law as written. Period. In terms of who is termed an "illegal alien," it is the federal definition that Arizona is going by!

Federal preemption can be either express or implied. There are two types of implied preemption: field preemption and conflict preemption. Field preemption occurs “where ‘the depth and breadth of a congressional scheme . . . occupies the legislative field.’” Conflict preemption describes a situation in which “compliance with both federal and state regulations is a physical impossibility or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” An actual, as opposed to hypothetical or potential, conflict must exist for conflict preemption to apply.

The United States must first demonstrate a likelihood of success on the merits. The United States challenges S.B. 1070 on its face, before it takes effect on July 29, 2010. “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” The Supreme Court later observed, in considering a facial challenge, “Some Members of the Court have criticized the Salerno formulation, but all agree that a facial challenge must fail where a statute has a ‘plainly legitimate sweep.’” In deciding a facial challenge, courts “must be careful not to go beyond the statute’s facial requirements and speculate about ‘hypothetical’ or ‘imaginary’ cases.”

I know this is boring, but bear with me...

As discussed above, S.B. 1070 contains several provisions adding to and amending Arizona law. While the United States has requested that the Court enjoin S.B. 1070 in its entirety, it specifically challenges only select provisions. The United States also argues that the overall statutory scheme of S.B. 1070 is preempted because it attempts to set immigration policy at the state level and interferes and conflicts with federal immigration law, foreign relations, and foreign policy.

O.K. That's the argument. It's a false argument. Arizona's law does not - I repeat, does not - interfere with or conflict with federal immigration law.

Now, as to the question of whether enforcement of existing federal law interferes with and conflicts with transitory foreign policy as articulated by the Chief Executive of the moment, this is a matter between the federal executive branch (as represented by the Chief Executive of the moment) which claims permanence in foreign policy decisions (though the Constitution clearly gives the Senate a large role in foreign policy) and Congress - which created the laws in question in the first place.

Ladies and gentlemen... the law exists. The federal immigration laws exist! Even if one were to accept that existing federal laws were/are in conflict with the foreign policy pursuits of the administration of the moment, nothing in the Constitution authorizes the President to simply ignore these federal laws.

Not to get over-dramatic here, but ask yourself... does it strike you as a legal action for the President of the United States to "conspire" with the government of Mexico in such a manner as to allow the immigration laws of the United States to be violated and/or not enforced?

Section 1 of S.B. 1070 declares a unified, state-wide public policy, providing: "The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States."

Makes sense! Sounds reasonable! Hell... sounds laudable!

The United States urges the Court to enjoin S.B. 1070 as an integrated statutory enactment with interlocking provisions.

(*SCRATCHING MY HEAD*)

And so being an... er... "integrated statutory enactment with interlocking provisions" is... er... bad?

(*SNORT*)

Seriously... I can only address those parts of the Judge's decision which are in English.

The United States asserts that Section 1 animates and “infuses” the operative sections of the law.

(*SILENCE*)

Are these clowns kidding...?!?! Com'on... cut out the gobbly gook and give us the plain English translation. (Here... folks... you think I'm being too tough? Pull out a copy of the U.S. Constitution and see if there's anything in it about "integrated statutory enactment with interlocking provisions" or "animating and infusing operative sections of law." I'm betting the Founders would recognize this language as gobbly gook right along with me!)

“[W]hen the constitutionality of a state statute is challenged, principles of state law guide the severability analysis and [courts] should strike down only those provisions which are inseparable from the invalid provisions.”

Yeah, yeah... in English what they're saying is that just because portions of a law are ruled unconstitutional this doesn't mean that the entire law must be thrown out. Fine. Got it.

“A court should not declare an entire statute unconstitutional if the constitutional portions can be severed from those which are unconstitutional.”

Under Arizona law, it is well settled . . . that where the valid parts of a statute are effective and enforceable standing alone and independent of those portions declared unconstitutional, the court will not disturb the valid law if the valid and invalid portions are not so intimately connected as to raise the presumption the legislature would not have enacted one without the other, and the invalid portion was not the inducement of the act.

In determining whether potentially unconstitutional provisions of S.B. 1070 may be severed from the remainder of the enactment, the primary concern is legislative intent. Where a statute contains a severability provision, Arizona courts generally attempt to give effect to the severability clause.

Bear with me folks... I'm including this just in the interest of providing a full "review" of the full decision. I will skip ahead now though to the bottom line the above refers to, namely:

S.B. 1070 will not be enjoined in its entirety. The Court will not ignore the obligation to preserve the constitutional provisions of a state legislative enactment or S.B. 1070’s severability clause. The Court thus evaluates the constitutionality of the individual provisions of S.B. 1070 challenged by the United States.

Get it, folks? The Judge is laying the groundwork to make the argument that she's being "reasonable" in unreasonably enjoining "only parts" of S.B. 1070. She's citing the fact she didn't simply enjoin the entire bill as "evidence" of her "reasonableness."

(*SMIRK*)

Section 2(B) of S.B. 1070 provides as follows: "For any lawful stop, detention or arrest made by an Arizona law enforcement official or . . . law enforcement agency . . . in the enforcement of any other law or ordinance of a county, city or town of this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person’s immigration status determined before the person is released.

Section 2(B) also states that if an officer is presented with one of the following forms of identification, the officer is to presume that the person is not an unauthorized alien: (1) a valid Arizona driver license or identification license; (2) a valid tribal enrollment card or other form of tribal identification; or (3) a valid United States federal, state, or local form of identification, provided that the issuing entity requires proof of citizenship before issuance.

O.K. Now here's the deal. You need to read the preceding two paragraphs as one and when you do it's clear that the second paragraph (Section 2B also...) clarifies the first.

Could Arizona legislators have attempted to further clarify - for example by noting "if no English is spoken" or "if only broken English is spoken" that is proper grounds for reasonable suspicion existing that the person is an alien unlawfully present in the United States? Sure. But that opens a whole new legal can of worms where defense attorneys would argue that since the legislation specifics "some" particulars then "all" possible particulars must be specified within the legislation itself. Clearly that would be an unworkable burden upon any legislative device such as this.

No, folks... the intent of the legislation is crystal clear. Rather than specific what might arouse reasonable suspicion the legislation specifies what automatically discounts reasonable suspicion.

Finally... as for making the ultimate decision concerning whether a detention/arrest was legitimate... that's an after the fact question for the judge in question when the detainee gets his or her "day in court." Indeed, one of the tragedies of delaying implementation of S.B. 1070 is that by doing so the Court delays the advancement of precedent clarifying "reasonable suspicion" that would come via enforcement of the law and judicial precedent that would come out of judicial action - i.e. hearings/trials.

The United States argues that this section is preempted because it will result in the harassment of lawfully present aliens and will burden federal resources and impede federal enforcement and policy priorities.

Well... beyond the fact that in my view this is a ridiculous, unfounded argument, even if one were to take it seriously the only way to either verify or refute the accusation is to allow the law to go into effect and see what happens! (Again, having read the law - having referred to the pertinent parts right here - it's clear to me that there would be no more chance of "harassment" - in a legally impermissible sense - taking place with enforcement of this law then there is with any other law.)

The Court first addresses the second sentence of Section 2(B): “Any person who is arrested shall have the person’s immigration status determined before the person is released.”

Yes... but only assuming there is reasonable suspicion that the person is here illegally! (We've gone over this!)

Arizona advances that the proper interpretation of this sentence is “that only where a reasonable suspicion exists that a person arrested is an alien and is unlawfully present in the United States must the person’s immigration status be determined before the person is released.”

Yes... (*ROLLING MY EYES*)

Arizona goes on to state, “The Arizona Legislature could not have intended to compel Arizona’s law enforcement officers to determine and verify the immigration status of every single person arrested - even for United States citizens and when there is absolutely no reason to believe the person is unlawfully present in the country.”

Again... the law is clear. The initial presumption is always that person coming into legal contact with an officer of the law is a citizen. What creates "reasonable suspicion" to the contrary is laid out in the negative - if for example one has no form of id indicating (by default) citizenship.

The Court cannot interpret this provision as Arizona suggests.

(*SNORT*)

Well... my best guess is that "the Court" had her mind made up before the case even came before her. Can I prove this? No. That said... this writer can certain - and does in fact - interpret the provision "as Arizona suggest" with no trouble at all. (This rare skill I employ is called... er... "common sense." (aka: "plain reading.")

Before the passage of H.B. 2162, the first sentence of Section 2(B) of the original S.B. 1070 began, "For any lawful contact” rather than “For any lawful stop, detention or arrest.” (Compare original S.B. 1070 § 2(B) with H.B. 2162 § 3(B).) The second sentence was identical in the original version and as modified by H.B. 2162. It is not a logical interpretation of the Arizona Legislature’s intent to state that it originally intended the first two sentences of Section 2(B) to be read as dependent on one another.

Actually it is! (Com'on, Judge... you don't actually expect anyone to buy this transparent attempt to create what amounts to a technicality... do you...???)

Com'on, Judge... in a footnote you yourself actually note, "Arizona acknowledges that this sentence of Section 2(B) “might well have been more artfully worded.”

Bottom line, the clear meaning - the clear intent - of the Arizona legislation was never and is not now in fair reading dispute. You know it... I know it... any fair-minded person knows it.

As initially written, the first sentence of Section 2(B) did not contain the word "arrest,” such that the second sentence could be read as modifying or explicating the first sentence. In S.B. 1070 as originally enacted, the first two sentences of Section 2(B) are clearly independent of one another. Therefore, it does not follow logically that by changing “any lawful contact” to “any lawful stop, detention or arrest” in the first sentence, the Arizona Legislature intended to alter the meaning of the second sentence in any way. If that had been the Legislature’s intent, it could easily have modified the second sentence accordingly.

(*ROLLING MY EYES*)

Judge. Com'on. At this point I can't even follow your reasoning! Are you saying that "as initially written" the law was fine and that "as modified" it's not?

Are you saying "as initially written" the law wasn't fine but "as modified" it is?

No... what you seem to be saying is that "Heads Arizona loses, tails Arizona loses." (*SMIRK*)

As a result of this conclusion, the Court reads the second sentence of Section 2(B) independently from the first sentence.

Hmm... if that's the case then how come to the best of my knowledge not one single member of the Arizona legislature who voted "aye" on both the original language and the modified language says you're presently reading the law correctly? Hmm...???

Folks... com'on... it clear what this Judge is doing.

The Court also concludes that the list of forms of identification that could provide a presumption that a person is not an unlawfully present alien applies only to the first sentence of Section 2(B) because the second sentence makes no mention of unlawful presence: the second sentence states plainly that “any person who is arrested” must have his or her immigration status determined before release. A presumption against unlawful presence would not dispose of the requirement that immigration status be checked because a legal permanent resident might have a valid Arizona driver’s license, but an inquiry would still need to be made to satisfy the requirement that the person’s “immigration status” be determined prior to release.

(*HEADACHE*)

Folks... go back if you need to and re-read 2(B). It's clear. (*SIGH*) In plain English... the Judge is "full of it."

The United States asserts that mandatory determination of immigration status for all arrestees “conflicts with federal law because it necessarily imposes substantial burdens on lawful immigrants in a way that frustrates the concern of Congress for nationally-uniform rules governing the treatment of aliens throughout the country – rules designed to ensure ‘our traditional policy of not treating aliens as a thing apart.’”

But they are "things apart!" They're "things apart" in the sense that they're non-citizens, non-legal guests let alone residents! And the reason they're non-citizens, non-legal guests let alone residents is precisely because of federal law as created by Congress!

Hey... following the government's logic shouldn't Holder be royally pissed at President Obama for promising that no illegal alien would be eligible for subsidized Obamacare if it were passed...??? (You folks remember that particular presidential address... right?)

(*SMIRK*)

I know I'm being a wiseass here, but the federal government's assertions are on their face in direct conflict with everyday federal immigration policies! (Take food stamp eligibility... illegal alien adults aren't eligible for food stamps!)

Finding a state law related to alien registration to be preempted, the Supreme Court in Hines observed that Congress “manifested a purpose to regulate immigration in such a way as 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.”

Again... nonsense. Congress certainly has NOT mandated that illegal aliens be treated as if they were legal aliens.

(*HEADACHE*)

Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully-present aliens because
their liberty will be restricted while their status is checked.

Umm... kinda forgetting the following, ain't ya, Judge...

By "the following" I refer to - and reiterate - the following previously covered material: Subsection 2(B) requires officers to make a reasonable attempt, when practicable, to determine an individual’s immigration status during any lawful stop, detention, or arrest where reasonable suspicion exists that the person is unlawfully present in the United States [and] also requires that all persons who are arrested have their immigration status verified prior to release. (Subsections 2(B) and 2(E) provide the process for verifying immigration status and list documents that create a presumption of lawful presence.)

Note: "Presumption of lawful presence."

Folks... again... how can this Judge in good conscience simply ignore terms in the Arizona law such as "make a reasonable attempt when practical," and "subsections 2B and 2E provide the process for verifying the immigration status and list documents that create a presumption of lawful presence"?

Folks... any lawfully-present alien who somehow finds himself or herself in a situation where his or her "liberty is restricted" already possesses both civil and criminal redress! This reality is itself presumption against presumption that Arizona will violate civil liberties enforcing this law in any greater degree than Arizona law enforcement officers risk doing enforcing any other laws on the books.

Given the large number of people who are technically “arrested” but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification.

I don't see how. As the Judge herself notes, large numbers of people who are technically "arrested" are never booked into jail or even transported to a law enforcement facility, so therefore for these people we're not really talking "extended detention time" - unless, that is, Judge Bolton envisions Arizona police officers devoting several hours... nay, several days... to each and every traffic stop.

(*CHUCKLE*)

As to the folks actually arrested and detained in terms of temporary incarceration... we've already covered this! There's either probable cause creating a reasonable presumption of unlawful (the flip side of lawful) presence or there's not! (Let the law go into effect and that's how to get any "kinks" out. I mean, seriously... in the real world that's how laws always work; that's how enforcement always works!)

Under Section 2(B) of S.B. 1070, all arrestees will be required to prove their immigration status to the satisfaction of state authorities, thus increasing the intrusion of police presence into the lives of legally-present aliens (and even United States citizens), who will necessarily be swept up by this requirement.

(*SNORT*)

O.K. At this point Judge Bolton is just making it up as she goes along!

Again, folks... if the courts do their job then Judge Bolton's reference to "the satisfaction of state authorities" also ultimately translates to "the satisfaction of the courts."

The United States argues that the influx of requests for immigration status determination directed to the federal government or federally-qualified officials would “impermissibly shift the allocation of federal resources away from federal priorities.”

Ridiculous! The state of Arizona can only request the feds do their job; it can't require them to. The power - the decision concerning how to administer federal resources - will still be entirely within the federal government's purview.

State laws have been found to be preempted where they imposed a burden on a federal agency’s resources that impeded the agency’s function.

But this "burden" can be managed - can actually be refused - entirely upon the discretion of the federal government. Therefore the only "burden" Arizona can place upon the federal government is the "burden" the federal government itself chooses to shoulder.

Pursuant to 8 U.S.C. § 1373(c), DHS is required to “respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status . . . for any purpose authorized by law, by providing the requested verification or status information.”

I fail to note a specific requirement concerning the speed of the response. In any case... it's up to DHS to figure out how to do their job; either that or ask Congress to change 8 U.S.C. § 1373(c).

(*SHRUG*)

DHS has, in its discretion, set up LESC, which is administered by ICE and “serves as a national enforcement operations center that promptly provides immigration status and identity information to local, state, and federal law enforcement agencies regarding aliens suspected of, arrested for, or convicted of criminal activity.” Mr. Palmatier states in his Declaration that LESC resources are currently dedicated in part to national security objectives such as requests for immigration status determination from the United States Secret Service, the FBI, and employment-related requests at “national security related locations that could be vulnerable to sabotage, attack, or exploitation.” Thus, an increase in the number of requests for determinations of immigration status, such as is likely to result from the mandatory requirement that Arizona law enforcement officials and agencies check the immigration status of any person who is arrested, will divert resources from the federal government’s other responsibilities and priorities.

Sorry... but this isn't Arizona's problem; this is an internal federal government matter. Again... either DHS can figure out how to manage their responsibilities according to federal law as written within the resource parameters available to it or else the federal executive branch can request that the federal legislative branch either remove legal responsibilities from DHS's purview or else fund DHS to the level it and the executive branch deems necessary to fulfill it's current legal obligations.

(*SHRUG*)

For these reasons, the United States has demonstrated that it is likely to succeed on its claim that the mandatory immigration verification upon arrest requirement contained in Section 2(B) of S.B. 1070 is preempted by federal law.

Like hell it did! (*SHAKING MY HEAD IN DISGUST*)

This requirement, as stated above, is likely to burden legally-present aliens, in contravention of the Supreme Court’s directive in Hines that aliens not be subject to "the possibility of inquisitorial practices and police surveillance.”

More bull. As previously demonstrated, this is absolutely not the case.

Further, the number of requests that will emanate from Arizona as a result of determining the status of every arrestee is likely to impermissibly burden federal resources and redirect federal agencies away from the priorities they have established.

(*SIGH*) (*GRITTING MY TEETH*)

Previously dealt with. Only the federal government - itself - can "burden" the federal government in terms of the allocation of its resources. The federal government and only the federal government has the final say on whether to "allow" itself to be "burdened."

Next, the Court turns to the first sentence of Section 2(B): "For any lawful stop, detention or arrest made by [an Arizona] law enforcement official or . . . law enforcement agency . . . in the enforcement of any other law or ordinance of a county, city or town of this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation."

The United States makes essentially the same arguments about this requirement. First, the United States advances that it imposes a burden on lawfully-present aliens not permitted in Hines... Second, the United States argues that this requirement impermissibly burdens and redirects federal resources away from federally-established priorities.

The United States’ arguments regarding burdening of federal resources are identical to those outlined above and will not be restated. However, the United States makes several arguments with respect to the burden on lawfully-present aliens that are specific to or slightly different in the context of the first sentence of Section 2(B).

First, the United States argues that this provision “necessarily places lawfully present aliens (and even U.S. citizens) in continual jeopardy of having to demonstrate their lawful status to non-federal officials.”

Just out of curiosity... is it the position of the U.S. government that lawfully present aliens and even U.S. citizens can be placed in continual jeopardy of having to demonstrate there lawful status to federal officials...???

The United States further asserts that there are numerous categories of lawfully-present aliens “who will not have readily available documentation to demonstrate that fact,” including foreign visitors from Visa Waiver Program countries, individuals who have applied for asylum but not yet received an adjudication, people with temporary protected status, U and T non-immigrant visa applicants, or people who have self-petitioned for relief under the Violence Against Women Act.

While I understand the motivation of the government to make such an argument, I don't understand why documentation demonstrating what amounts to official federal authority to remain on U.S. soil for a set period of time (or even an indeterminate period of time) shouldn't be readily available.

Note the language of the federal government's assertion. They're not saying such documentation doesn't exist, they're saying numerous categories of lawfully-present aliens will not have readily available documentation to demonstrate that fact. Well... why not give such persons said documentation???

Also, the United States points out that United States citizens are not required to carry identification, and some citizens might not have easy access to a form of identification that would satisfy the requirement of Section 2(B).

This brings us back to the whole debate concerning what's "reasonable," what's "practical," what is or is not to be "presumed." (Round and round we go...)

(*SIGH*)

The United States contends that the impact on lawfully-present aliens of the requirement that law enforcement officials, where practicable, check the immigration status of a person lawfully stopped, detained, or arrested where there is reasonable suspicion that the person is an alien and is unlawfully present will be exacerbated by several factors.

"Contends...???" (In other words, "guesses." In other words, looks gazes into its crystal ball...)

First, the United States suggests that the impact on lawfully-present aliens is enhanced because this requirement applies to stops for even very minor, non-criminal violations of state law, including jaywalking, failing to have a dog on a leash, or riding a bicycle on the sidewalk. Also, the United States argues that the impact will be increased because other provisions in S.B. 1070 put pressure on law enforcement agencies and officials to enforce the immigration laws vigorously.

Because God forbid immigration laws are enforced vigorously... (*SNORT*) (They're kidding... right? Please tell me they're kidding...)

Legal residents will certainly be swept up by this requirement, particularly when the impacts of the provisions pressuring law enforcement agencies to enforce immigration laws are considered.

Hmm... you mean the way sober drivers are "swept up" in DWI checks or registered vehicle owners with up to date inspection stickers are "swept up" in vehicle registration/inspection police checkpoints?

(My point being that citizens are "inconvenienced" quite frequently - and legally - by government police actions.)

(Is the impact of a DWI checkpoint increased because the ultimate purpose is to catch drunk drivers...??? One would hope!)

The United States asserts, and the Court agrees, that “the federal government has long rejected a system by which aliens’ papers are routinely demanded and checked.” The Court finds that this requirement imposes an unacceptable burden on lawfully-present aliens.

Aliens' "papers" are not "routinely demanded and checked" in a vacuum. Their "papers" are "demanded and checked" only as a last resort under the conditions noted earlier (time and again!) in specific cases under specific circumstances. These are not random identification checks. They are not even random citizenship checks! Rather, Subsection 2(B) requires officers to make a reasonable attempt, when practicable, to determine an individual’s immigration status during any lawful stop, detention, or arrest where reasonable suspicion exists that the person is unlawfully present in the United States - the key words being "where reasonable suspicion exists."

With respect to the United States’ arguments regarding the burden on and impediment of federal resources as they relate to the first sentence of Section 2(B), the Court’s conclusions mirror those stated above regarding the second sentence of Section 2(B). Federal resources will be taxed and diverted from federal enforcement priorities as a result of the increase in requests for immigration status determination that will flow from Arizona if law enforcement officials are required to verify immigration status whenever, during the course of a lawful stop, detention, or arrest, the law enforcement official has reasonable suspicion of unlawful presence in the United States.

We're going around in circles here. I've previously dealt with these unreasonable assertions. Both the United States' arguments and Judge Bolton's acceptance of them in this particular instance fly in the face of the unchallenged reality that the state of Arizona has no power to enforce its requests upon the federal government even if those requests are legally valid under federal law itself. (We've covered this!)

In combination with the impermissible burden this provision will place on lawfully-present aliens, the burden on federal resources and priorities also leads to an inference of preemption. Therefore, for the purposes of preliminary injunction analysis, the Court concludes that the United States has demonstrated a likelihood of success on its challenge to the first sentence of Section 2(B). Section 2(B) in its entirety is likely preempted by federal law.

If there's no impermissible burden (which there clearly isn't; which effectively, administratively there clearly can't be!) then how in God's name does the Judge get "...also leads to an inference of preemption."

(In any case, I disposed of the matter of preemption at the start of this review.)

Section 3 states that “a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 [U.S.C. §§] 1304(e) or 1306(a).” The penalties for violation of Section 3, a class 1 misdemeanor, are a maximum fine of $100 and a maximum of 20 days in jail for a first violation and up to 30 days in jail for any subsequent violation. A.R.S. § 13-1509(H).

Obviously the federal law in question is meant to penalize legally-present aliens for failure to abide by the federal "must carry registration document" regulation - not to dictate that aliens illegally present who wouldn't have the proper documents in the first place shall be "punished" for... er... not carrying documents they were never issue - and which they're obviously not entitled to in the first place.

In other words, "the person" that Section 3 refers to in the context of the federal law is "the person" who is legally in the United States in the first place!

(*HEADACHE*)

Section 3 also limits violators’ eligibility for suspension of sentence, probation, pardon, and commutation of a sentence and requires violators to pay jail costs. Section 3 does not apply to “a person who maintains authorization from the federal government to remain in the United States.”

Exactly. Makes sense. So far so good.

Essentially, Section 3 makes it a state crime to violate federal registration laws and provides for state prosecutions and penalties for violations of the federal registration law.

Because the Arizona law mirrors the federal law and thus by violating federal law a violation of state law is taking place.

(*HEADACHE*)

The United States argues that Section 3 is preempted because it interferes with comprehensive federal alien registration law, seeks to criminalize unlawful presence, and will result in the harassment of aliens. Arizona asserts that Section 3 neither conflicts with federal law nor regulates in a federally occupied field.

And Arizona is right!

“The power to restrict, limit, regulate, and register aliens as a distinct group is not an equal and continuously existing concurrent power of state and nation[;] . . . whatever power a state may have is subordinate to supreme national law.” - Hines, 312 U.S. at 68.

In Hines, the Supreme Court found that, where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.

In terms of creating a separate registration process!

Yep... you guessed it, folks... Judge Bolton is (and I'm being charitable here - giving her the benefit of the doubt with regard to her intentions) failing to address Hines in proper context - as anyone who bothers to read the actual Hines decision will discover.

Folks... either purposefully or via sheer incompetence Judge Bolton is and has been throughout this decision mischaracterizing Hines in context with the issues central to United States v. Arizona.

Hines also stated that a state statute is preempted where it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” The Supreme Court determined in Hines that the purpose of the Federal Alien Registration Act was to “make a harmonious whole” and that the Alien Registration Act “provided a standard for alien registration in a single integrated and all-embracing system.”

Folks... read Hines. (*SMIRK*) That's all I can tell you.

Just as a hint though... note... "Registration" Act. We're talking about the federal government's unchallenged power to "register" (make regular... make legal) immigrants and in that context regulate immigration. Arizona is neither claiming the United States' federal government lacks that authority nor is Arizona creating a duel "registration" system. I'm sure that Judge Bolton understand this - she simply doesn't care. Again... and I don't know how else to say it... Judge Bolton is clearly and apparently deliberately mischaracterizing (creating in a sense!) a direct "precedent" relationship between United States v. Arizona and Hines which is simply untenable.

While the Supreme Court rejected the possibility that the INA is so comprehensive that it leaves no room for state action that impacts aliens the Supreme Court has also evaluated the impact of the comprehensive federal alien registration scheme and determined that the complete scheme of registration precludes states from conflicting with or complementing the federal law.

(*SIGH*) One more time... there is no conflict. Arizona did not attempt to create its own alien registration scheme.

Section 3 attempts to supplement or complement the uniform, national registration scheme...

No it doesn't.

...by making it a state crime to violate the federal alien registration requirements...

Which does not attempt to supplement or complement the uniform, national registration scheme!

...which a state may not do “inconsistently with the purpose of Congress.”

Not only is Arizona not attempting to supplement or complement the uniform, national registration scheme via Section 3... (*SIGH*)... but Section 3 (and indeed the totality of the Arizona state law) is exactly consistent with the purpose of Congress as demonstrated by past and existing federal law itself!

While Section 3 does not create additional registration requirements...

(*BLOOD SHOOTING FROM MY EYES, EARS, AND NOSE*)

Isn't that what I've been saying...?!?!

...the statute does aim to create state penalties and lead to state prosecutions for violation of the federal law.

Which is perfectly permissible and indeed laudable!

Although the alien registration requirements remain uniform, Section 3 alters the penalties established by Congress under the federal registration scheme.

Question: If Arizona removed all "penalties" from the law but retained power to "detain" until federal authorities took physical charge of the "detained" alien would that take the issue of "non-uniform penalties" off the table?

Section 3 stands as an obstacle to the uniform, federal registration scheme and is therefore an impermissible attempt by Arizona to regulate alien registration. As a result, the Court finds that the United States is likely to succeed on its claim that Section 3 is preempted by federal law.

Not only is Section 3 in no way an obstacle to the uniform, federal registration scheme... not only is Section 3 not an impermissible attempt by Arizona to regulate alien regulation... but I can't imagine a majority of the Supreme Court ruling that Section 3 is preempted by federal law.

Frankly... as previously noted... Bolton is simply making it up as she goes along.

* To be continued...