On April 23, 2010, Arizona Gov. Jan Brewer signed the controversial Support Our Law Enforcement and Safe Neighborhoods Act, 2010 (S.B. 1070) into law. A week later she signed amendments contained in House Bill 2162 into law.
The controversial law was to take effect at midnight July 29, 2010. Although 65% of Arizona residents supported the legislation, many people were strongly opposed including President Obama. The critics said that the new law amounted to racial profiling and the hassling of American citizens and immigrants who were in the United States legally.
On July 6, 2010, the United Sates commenced an action arguing that S.B. 1070 was unconstitutional. The main argument was that immigration is a federal matter and that the state law is preempted by federal law.
Along with the action, the United States also asked for a preliminary injunction to prevent S.B. 1070 coming into force prior to the matter of its constitutionality being decided. On July 28, 2010, hours before the law was to take effect, Judge Susan Bolton of the U.S. District Court in Phoenix rendered her decision on injunctive relief. She divided the sections of the law into three groups, blocking some of the provisions from coming into force and allowing others.
Sections of S.B. 1070 that the United States Did Not Ask be Enjoined
Judge Bolton found that S.B. 1070 is not a separate piece of legislation; rather it provides amendments to existing Arizona law. She held that despite the fact that the United States asked for a preliminary injunction of S.B. 1070 in its entirety, she was not prepared to do that. She went through the Act, section by section, and held that those sections that the federal government did not specifically attack would not be blocked.
These sections are part of Section 2 that prohibits Arizona officials, agencies and political bodies from limiting enforcement of federal immigration laws, requiring state officials to work with federal officials and allowing legal residents to sue the state or its officials for restricting the enforcement of federal immigration law less than the full extent permitted by federal law.
Section 4 that amended the crime of human smuggling was also not opposed and not enjoined. As well, portions of Section 5 that creates the crime of stopping a motor vehicle to pick up day laborers and the crime of day laborers to entering a vehicle where it impedes traffic were also allowed to stand.
Sections 7 and 8 that amend the crimes of knowingly employing an unauthorized alien and the intentional employment of unauthorized aliens were also left intact. So was Section 9 that amends the requirements for checking employment eligibility.
Section 12 that creates a gang and immigration intelligence team enforcement mission fund was also left as it had not been argued by the government that is unconstitutional
Sections of S.B. 1070 not Enjoined
In order to grant an injunction, the court must be satisfied that there is a serious issue to be tried, the plaintiff would suffer irreparable harm if the injunction is not granted and the balance of equities favors the granting of the injunction and the injunction in the public interest.
Judge Bolton found the following sections that were argued were not likely to succeed on the merits at trial and were therefore not blocked.
A portion of Section 5 that creates a separate crime for a person who transports, harbors or encourages or induces an illegal alien to come to or live in Arizona was not enjoined. Neither was Section 10 that amends existing provisions that provides for the removal or impounding of a vehicle that is used to transport or harbor an unlawfully present alien.
Sections of S.B. 1070 that were Enjoined
Regarding the remaining sections, Judge Bolton found that the United States will likely succeed at trial, that the federal government would be irreparably harmed if an injunction was not granted and that the balance of the equities considering the public interest favored the United States.
Portions of Section 2 that requires a police officer to make a reasonable attempt to ascertain the immigration status of a person who is stopped, detained or arrested and the officer has a reasonable suspicion that they are in the United States illegally were enjoined. Section 3 that provides a crime for failure to apply for or carry alien registration papers was also blocked.
Part of Section 5 that creates a crime for an unauthorized alien to solicit, apply for or perform work was enjoined as was Section 6 that authorizes the warrantless arrest of a person where there is probable cause to believe that person has committed an offense that would make that person removable from the United States.
While much of the law was left and is now in force, the major sections that allow the authorities to identify illegal aliens have been enjoined. Shortly after the ruling was handed down, Governor Brewer announced that she intended to appeal the decision.
Source: United States of America vs. State of Arizona et. al.
Arthur Weinreb - Weinreb is an author, associate editor and columnist with Canada Free Press and the Canadian Affairs Feature Writer for Suite 101.
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