The United States argues the power to regulate immigration is vested exclusively with the federal government. The provisions of Senate Bill 1070 should therefore be preempted by federal law.
The U.S. asked Federal District Court Judge Susan R. Bolton to issue a preliminary injunction preventing SB 1070 from becoming law.
Bolton ruled in U.S. v. Arizona the U.S. is likely to win the argument over preemption and will suffer irreparable harm unless parts of SB 1070 are blocked. An injunction would be fair and in the public interest, she decided.
What is Preemption?
When a federal law cancels out a conflicting state law, this is called "preemption." Preemption is also a way of saying Congress has occupied a field of law, in this case, immigration, and left few or no issues for states to regulate. Bolton applied both of these tests and decided that when U.S. v Arizona finally comes to trial, four parts of SB 1070 will probably be preempted by federal immigration law.
Read more: Suite101.com, "Activist Judge Blocked Senate Bill 1070?"
Federal Law is Supreme
Art. VI of the U.S Constitution contains what is known as the "Supremacy Clause." Article VI states the "Constitution and the laws of the United States ... shall be the supreme law of the land ... anything in the constitutions or laws of any State to the contrary notwithstanding."
In other words, the Constitution, a federal enactment, is the "supreme law of the land." Like every state, Arizona must take a back seat to the federal government if its laws directly conflict with federal laws, according to Constitutional law expert Doug Linder in his posting at Issues in Constitutional Law, "The Supremacy Clause and Federal Preemption."
Likewise, when Congress passes so many laws in a particular field that it leaves nothing for state legislatures to regulate, this is known as "occupying the field," Linder says.
When there is a direct conflict between state and federal law or when federal law is judged to occupy the field, state laws can be preempted.
Senate Bill 1070 contains a severability clause. It states: "If a provision of this act ... is held invalid, the invalidity does not affect other provisions." Bolton ruled that means parts of Senate Bill 1070 could be severed and blocked while other sections would become law automatically.
Bolton's Ruling
Bolton ruled four sections could be severed and preempted. These include sections of SB 1070 which:
- Require law enforcement to verify immigration;
- Declare the failure to carry immigration papers a crime;
- Make applying for, or working, jobs without proper documentation a crime; and,
- Allow searches without a warrant when there is probable cause to believe a suspect committed a crime that would get him or her deported.
Many critics argued blocking these four sections essentially "gutted" the law.
Bolton ruled that by making the determination of alien status mandatory, SB 1070 would cause lawfully present aliens to be harassed. Federal resources and enforcement policies would be hindered in their purpose. The U.S. has no remedy at law for such an injury; it's harm is therefore irreparable.
In other words, people legally in the U.S. would be delayed and hindered in their travels as Arizona law enforcement runs checks on their citizenship - a requirement of the law. Restructuring federal priorities and plans to accommodate state laws interferes with one of the federal governments chief goals: Enforcing a uniform set of rules governing immigrants, legal and otherwise, to ensure all are treated equally in each of the 50 states.
SB 1070 conflicts with federal law because it imposes a substantial burden on lawful immigrants in a way that frustrates Congress' intention, which is to have a nationally uniform set of rules governing the treatment of aliens throughout the country.
Injunction Just the Beginning
The case of U.S v. Arizona is in its beginning phases. Bolton issued a temporary injunction, or stop order, to prevent parts of the "The Support Our Law Enforcement and Safe Neighborhoods Act," from becoming law. It will be many months before Bolton makes a final decision on the Constitutionality of SB 1070.
Whatever her decision, appeals are likely to follow because Arizona is determined to innovate ways to remove undocumented workers from within its borders, according to Arizona Gov. Jan Brewer in the July 29, 2010 Politico Website post by Andy Barr, "Jan Brewer Files Immigration Appeal."
Greg Ruland - Greg Ruland holds a juris doctor degree from University of Oregon School of Law. He worked his first professional writing job at age 15 as ...
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