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Why U.S. v. Arizona Matters
Posted on Aug 6, 2010
Let there be no doubt: Federal district court Judge Susan Bolton’s decision in U.S. v. Arizona was a big win for the U.S. Department of Justice from a legal standpoint, a big win for President Barack Obama from a political standpoint, and also a big win for a nation characterized by an increasingly fractious electoral climate with some states eager to embrace a power struggle with the federal government.
The decision issued by Bolton ordered only a “preliminary” injunction, which halts implementation of the most noxious and controversial provisions of Arizona’s SB 1070. That legislation included some small changes to Arizona law regarding such matters as the crime of smuggling immigrants or traffic laws that would apply to vehicles stopped on streets where immigrant laborers congregate. Those traditionally local laws were not seriously opposed by the Department of Justice (DOJ).
Thus, some provisions of SB 1070 took effect and were not enjoined by Bolton’s order. If Arizona’s legislators want to forbid stopping motor vehicles on a street near a Home Depot, they should (and can) have at it. The cost of driving a little further down the street to a vacant lot where workers gather away from a street will be borne by Arizona’s home improvement contractors.
Why an Injunction—and a ‘Preliminary’ One at That?
To understand the relationship between the politics and the legal future of a lawsuit that has begun with issuance of a “preliminary injunction,” an explanation (as if given in the first person by Bolton) might go something like this:
There will be a trial and appeals. But figuratively, this win in the first quarter means the field is tilted at a big angle in favor of the DOJ and against Arizona. It will be an uphill battle for Arizona through the “final” ruling by the district judge. The incline of that legal hill will be even greater in the Ninth Circuit Court of Appeal, thought to be more liberal than many other federal circuit courts of appeal, and preternaturally expected to look with approval on the decisions of lower court judges (which appellate judges frequently recall they once were).
Some metrics drawn from the football metaphors that crept into the last paragraph might help to convey more clearly the magnitude of Judge Bolton’s ruling. If a lawsuit was scored like a football game, the score might be of this magnitude: United States 48, Arizona 6.
Why Is Arizona Running Afoul of the Constitution?
SB 1070 provided that for every arrest, a police officer must undertake a mandatory investigation. Further, SB 1070 provided that an immigration inquiry would occur during a detention only if and when the officer had a suspicion that the person detained may not be a citizen or, if an alien, did not have sufficiently convincing proof of lawful presence in the country. Even for those persons merely detained (for a brief investigation or question by an officer), there would ensue an immigration (“your papers please”) investigation if the detaining officer was suspicious of the person’s immigration status. And when that happened, those detentions (like the full arrest) would be “prolonged” and for that reason constitutionally unreasonable.
A “prolonged” detention is lawyer-speak for an officer in the field holding on to someone after the reason that precipitated the encounter has passed. (“No, you are still not free to go. I have to check your papers and status first.”) In other words, the Arizona Legislature passed a law that urged (and, for arrests, indeed required) police officers to engage in a constitutionally forbidden practice of a prolonged “seizure” of detained suspects instead of letting them go on their way when the reason for the initial detention ended. The Phoenix Suns’ all-star guard, Steve Nash, and Sen. John McCain would need proof of legal authority to be in the U.S. if arrested (e.g. cited and released) for jaywalking. (And that statement is true independent of the fact that Nash is Canadian and McCain was born in the Panama Canal Zone, as we learned in the last election cycle.)
Ironically, this automatic nature—and the attendant prolonged time for the immigration investigation phase—turned out to be its greatest constitutional vulnerability. Any robust (albeit perfectly legal) policing program that interacts at the street level with people in the community will produce false positives: people who, after being stopped, offer a convincingly innocent response to a police officer’s inquiry.
For this large number of false positives—especially when the false positive detentions vastly outnumber the forensically productive encounters—the separate, and more probing, intrusion of having to show papers adequate enough to satisfy a police officer was not going to be constitutionally permissible. These are repercussions that neither the Founding Fathers, to be sure, nor even some of the most law-and-order members of today’s American public want to be characteristic of life in the United States.
Bolton concluded the collateral constitutional damage that would be inflicted by the Arizona Legislature’s orders to its police officers was too great:
“Under [SB 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.”
Two things about this conclusion stand out. First, it artfully focused on the harm it would do to U.S. citizens and legally present aliens instead of harm that might befall illegal aliens or persons with problematic claims to being documented. Second, the opinion (like the DOJ’s brief) never delved into heat-provoking arguments about race and language-based stereotypes that so many commentators believed the bill would engender.
Proponents of stronger immigration enforcement (who may not care about any potential discrimination by the police) are possibly disappointed that Bolton’s opinion slipped those punches. Opponents of SB 1070 who condemn it as a bill legitimatizing racial profiling are possibly disappointed by the absence in the opinion of any reference to racial or ethnic discrimination. Passionate advocates on each side of the debate will have to wait for another vehicle. For this result alone, Bolton’s approach deserves respect for her legal reasoning, praise for her intellect and courage as judge, and admiration for her ability to avoid adding fuel anybody’s fire.
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