By Frosty Wooldridge
In a Nutshell
“The question for the Court is going to be this: can the federal government stop states from participating in immigration enforcement; is it exclusively the role of the federal government?” said Stein. “A favorable ruling will pave the way for more states to enact bills, thus limiting the scope of the Obama Administration’s non-enforcement policy. An unfavorable ruling will mean continued dismantling of immigration enforcement at the federal level with no available legal means for states to protect themselves.”
In this Corner - The DOJ’s Argument
“The Administration’s core argument is that federal law preempts SB-1070,” said Stein. “They will claim the authority to regulate immigration is the job of Congress and the authority to enforce the law is solely a federal responsibility. While arguing its case, the DOJ will make a legal stretch and suggest that Congressional intent also includes the discretionary authority Congress gives to the Executive Branch. If that argument were accepted, it would mean the President would have broad legal authority to not enforce the law.”
So, according to the Administration, SB 1070 is preempted because it conflicts:
- In some places with the intent of Congress.
- In other places with the Administration’s immigration policies – including new priorities set by the Department of Homeland Security to grant administrative amnesty to large categories of illegal aliens.
“To some extent, Arizona’s arguments are simpler,” said Stein. “Arizona rejects the DOJ’s claim that any and all portions of its bill violates federal authority to regulate immigration and contends that that federal preemption does not preclude lawful participation by states and localities. Arizona attorneys will argue in defense of most provisions of the bill that if states enforce illegal immigration in a manner consistent with federal law it is not unconstitutional.”
The Provisions in Question
- Section 2: Requires state and local law enforcement officers, during a lawful stop, arrest or detention, to inquire about immigration status if the officer has reasonable suspicion to believe the individual is an illegal alien.
- Section 3: Provides that is a violation of state law for an illegal alien to be in violation of the federal alien registration statutes.
- Section 5: Creates a misdemeanor offense which prohibits illegal aliens from applying for work, soliciting work in public places or performing work in Arizona.
- Section 6: Authorizes state and local police officers to conduct a warrantless arrest of an individual if the officer has probable cause to believe the person has committed a removable offense.