By David Coleman
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:
I still have to hear the evidence in the case, but I think the DOJ is probably right and the federal government will prevail in this case. In the meantime I don’t want this law to take effect until I can hear the whole case with evidence and legal arguments. That may take months to hear, research and decide upon. Arizona can still present evidence and argument, but I think when the case is over they probably won’t be able to convince me that it is constitutional. But if I wait to make a decision for the months it may take, people will have suffered harm they probably should not have to suffer.
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.
Yes, This Was About More Than Police Encounters; It Was Also About Job Seekers
Congress has primarily exercised its supreme authority on immigration through laws aimed at employers, and minimally directed at employment seekers. Federal law prescribes a maze of mandates for employers to check identification and cross-check with numerous federal law enforcement and immigration control agencies. Bolton observed that the Congress (the institution in which Arizona’s McCain once led on this issue) purposefully and deliberately rejected immigration control measures which focus on job applicants. The job seeker’s only duty is to not lie if queried about citizenship status when applying for a job.
Put differently, the national decision of our elected legislators (and the Republican and Democratic presidents who have signed immigration legislation) has been that employers, not job seekers, should bear the burden of ensuring compliance with immigration policy in the workplace. Arizona’s legislators—even under the guise of states’ rights—are not at liberty to decide that Congress made the wrong decision and should have attacked the issue in a different way. It was a decision for Congress to make—or not make. Congress intended that it be done a specific way; not that it could be done one way in Arizona (and maybe another in New Mexico, or differently in Vermont).
Bolton’s opinion noted that in employment matters, state law typically occupies the field with little federal intrusion beyond certain specialized topics, such as labor relations or immigration control, where the federal government wields powers that must be uniform. Nonetheless, Bolton pointed out, Congress had deliberately chosen to focus criminal sanctions only on employers and not on job hunters. This choice was very much a quintessential application of the supremacy clause of the Constitution that makes federal law “the supreme law of the land.”
How Arizona Arrogantly and Unilaterally Jumped the Line of All Other Security and Law Enforcement Interests
Another offending flaw in SB 1070 that DOJ lawyers emphasized, and Bolton accepted, was the impact the law would have on federal law enforcement and immigration control agencies. DOJ filed with the district court affidavits from top law enforcement administrators of agencies like the Department of Homeland Security and the FBI in Arizona. The affidavits supported the DOJ argument that enforcement of SB 1070 would mean federal immigration and law enforcement personnel and computer systems would be burdened by the greatly increased stress of responding to a tsunami of immigration status inquiries from local Arizona law enforcement.
Those calls from the patrol car or from the booking area of a city jail in Arizona have to be answered and processed by someone. Federal employees of those agencies will have to respond in real time to give the information requested by officers in the midst of detentions and arrests.
On this argument Bolton’s analysis evoked visions of a stressed and frazzled DHS or customs agent placing “on hold” a call from a sky marshal seeking information about the immigration status of a passenger on a jet bound for the United States while she responded to a request for information from an officer detaining a driver of pickup truck filled with garden tools on a street in Arizona.
Arizona’s police officers would be demanding attention and thereby diminishing resources the federal government was trying to focus on more serious threats from outside our borders. Federal resources to meet that challenge would be reduced while tending to Arizona’s political hissy-fit over illegal immigration.
How a Dangerous Political Challenge Was Met and Is Being Rebuffed
At a fundamental level, SB 1070 was nothing more than a states’ rights power play by the Arizona legislators and governor. In retrospect, it may have been nothing more than a bluff, known by those who received legal advice before enactment to be unlikely to remain standing. Perhaps they surmised the federal government would not want to bring a challenge (or it would hurt the administration if it did so). Thankfully, DOJ called Arizona’s bluff.
The DOJ, led by Attorney General Eric Holder, and in particular the Civil Division legal team fielded by Assistant Attorney General Tony West, should be complimented for advancing a precise supremacy clause argument and winning a victory on grounds that would not heat up the rhetoric of racial and ethnic stereotyping. Judge Bolton should be commended for unblinkingly pointing out constitutional flaws written into the procedures enacted by SB 1070. Arizona’s political vigilantes rode into a legal box canyon they devised through using a combustible mix of political and legal bluster; the DOJ rounded them up and restored constitutional law and order.
How the Lawsuit Can Be a Model for Defusing Incipient States’ Rights Rebellions That Challenge the Federal Government
President Obama has famously proclaimed admiration for certain of his Republican predecessors. Two of them come to mind in crises generated by tension between federal government prerogatives and “states’ rights.” One is, of course, the 19th century president from Illinois who fought to hold a federal government together in the face of a secessionist challenge by 13 Southern states. The other was a 20th century president, Dwight Eisenhower, who sent troops to Little Rock to enforce orders of federal courts when it was unpopular to do so among Southern states and other states now identified as “red.”
Americans should keep in mind that in the past, disgruntled states—not unlike Arizona in today’s immigration kerfuffle—insisted on their “rights” even when those rights conflicted with federal law. Then, as now, states wanted to enforce (or not enforce) laws of their choosing without regard to their duty to obey the Constitution and its allocation of governmental powers. Those states’ rights tensions with the federal government—as ugly as their history has been—are surfacing in the American polity now in virulent forms.
Hopefully, President Obama will consider some of that historical perspective as he decides to fight or acquiesce to future challenges of the kind embodied by the passage of Arizona SB 1070. As a student of Doris Kearns Goodwin’s writings on Lincoln, he should remember Lincoln’s genius was not simply in assembling a “team of rivals.” It was in assembling them, discerning which team members gave the wisest and most courageous advice, and then encouraging that team member to provide leadership.
Obama may have found “his Grant” in a Cabinet of rivals—he already has honorific “general” rank, and his name is Eric Holder.
AP / Ralph Freso
Hundreds of members of the Los Angeles County Federation of Labor march to the Arizona state capitol building in Phoenix on July 29 in protest against Arizona’s SB 1070 immigration enforcement law.