Don’t celebrate yet: Opponents of SB 1070 need a dose of perspective

Sam Singer Contributor
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Even the most stubborn supporters of SB 1070 will admit that the Justice Department’s decision to challenge the law paid dividends.  A federal court temporarily blocked the most controversial provisions then went on to suggest that the temporary injunction likely will give way to a permanent one.  Even if the court ends up lifting the injunction, the Justice Department will have disrupted Arizona’s enforcement timeline and in the process bought time for the White House. With that said, it is rare for constitutional litigation to produce decisive winners, and rarer still when the suit involves the balance of power between the federal government and a state.  The SB 1070 litigation is no exception.

For starters, the Justice Department asked the court to kill the bill, not merely   wound it. The Justice Department contends that even the lawful sections of the bill are animated by the overarching (and unlawful) objective of the legislature—influencing federal immigration policy through local enforcement and, ultimately, attrition.  It follows, the Justice Department explains, that the good portions should be thrown out with the bad.  The district court saw matters differently.  Eschewing an up-or-down decision, the court opted for a more textured approach, analyzing the law piece by piece, with the result that major parts of the bill survived. What’s left is a gutted, lifeless version of the former SB 1070, but even without its most draconian provisions, the bill still makes it difficult to be an unlawful alien in Arizona.

More significantly, the court’s piecemeal analysis betrays a fundamental disagreement with the Justice Department over the constitutional role of Congress in immigration enforcement. As Jonathan Adler points out, the court could have adopted the more ambitious position, briefed extensively by the Justice Department, that the area is an exclusively federal domain, off limits to the states unless Congress expressly permits their involvement.  Instead, the court reasoned that federal law preempted only those provisions of the bill that presented a conflict in fact, a nod to Arizona’s position that the balance of power is not so lopsided. Where the Justice Department sees Arizona’s role confined to the small pocket of the law carved out for the state by Congress, the court seemed open to permitting state regulation in the area that was not shown to interfere with federal enforcement.

Even the holdings that favored the Justice Department had their limitations. Opponents of the bill breathed a sigh of relief when the court blocked Section 2(B), the infamous stop-and-check provision requiring officers during lawful stops and arrests to determine a person’s immigration status before releasing him.  Section 2(B) was the provision that posed the gravest threat to civil rights and federal enforcement priorities, and as such became the primary target of the suit, the prize trophy for lawyers on both sides.  However, the court did not share Arizona’s understanding of Section 2(B), which provides as follows in relevant part:

“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.”

Turning first to the second sentence, the court concluded that the law would make hash of federal enforcement priorities by placing too heavy a burden on lawful aliens.  The court, over Arizona’s objection, read the second sentence of the statute to mean precisely what it says – that police must check the immigration status of anyone they arrest, suspected alien or otherwise.  Arizona insisted in its briefs that the broad scope of the second sentence is the result of a drafting error, and that the language is properly understood in context of the first sentence, which limits the status-check requirement to persons suspected of being unlawfully present.

Not surprisingly, this argument was unavailing.  A judge must give to a statute the plain meaning of the text, and the language in the second sentence of Section (B) admits of only one meaning.  Arizona gains no traction by insisting that the actual meaning is provided by the first sentence because if that were true, the second sentence would have no meaning at all; the first sentence would supply the entire rule.  The court, then, cannot be faulted for forcing Arizona to defend the text of the provision, but neither can the Justice Department be applauded for persuading the court to block it.  As written the provision was indefensible; it had to be blocked.  For the moment, fault lies with the lawyers who drafted the provision, not the policy makers who conceived it. It remains to be seen whether a more-narrow substitute, one reflecting the limitations Arizona intended, would survive scrutiny.

This peculiar result raises a flurry of questions, the most pressing being how policymakers bungled the very provision that defined the law and lent it political potency.  Another question is why the state chose to appeal the district court’s decision instead of first going back to the drafting table.  One possibility is that the state’s lawyers believe they can convince the U.S. Court of Appeals for the Ninth Circuit that the district court should have deferred to the state’s interpretation of its own statute. But judges reserve little sympathy for sloppy drafting, especially when the subject of the mistake is a statute.

Samuel Singer is a recent graduate of Emory Law School and a Staff Law Clerk for the US Court of Appeals for the Seventh Circuit. His commentaries on law and politics have appeared in various publications, including The Beachwood Reporter and Culturekiosque.com.  He has also reported and written articles for The Chicago Tribune and Market News International.