Does the Federal Government Have Grounds to Sue Arizona?

Secretary of State Hillary Clinton announced in Ecuador last week that the Obama Administration plans to commence legal proceedings against the State of Arizona to invalidate its recently enacted SB 1070. The new law directs state and local law enforcement officers and agencies to enforce federal immigration law by detaining or reporting persons giving rise to a “reasonable suspicion” of being in violation of it. The announcement was a surprise, not only because of who made it and where she made it, but also because of when she made it. Since Arizona SB 1070 becomes effective on July 29, any lawsuit announced now against implementation is premature or, as we lawyers put it, not “ripe.” Unless the Justice Department can envision no constitutional manner by which the law can be implemented, the contemplated lawsuit must be one that challenges the constitutionality of the law on its face. In other words, the Justice Department must be asserting that the statute is unconstitutional as written, rather than unconstitutional as implemented or enforced. But is there a legal basis for a facial challenge to the law?

A review of the statute leaves little reason to believe that a facial challenge to the law stands much chance of success. Federal law specifically empowers state and local law enforcement officials to enforce it; indeed, it often mandates enforcement of federal law by state and local officials. SB 1070 merely directs state and local officials to enforce federal immigration law when they have a “reasonable suspicion” that a person might be in violation of federal immigration law. It might be fashionable to imagine the horror scenarios of police officers asking anyone with Hispanic or Native American features or surnames to produce their “papers.” The law, however, does not, on its face, direct police to do so. Nor does it confer upon them unfettered discretion in its enforcement.

What the law does require is the application of a standard with which law enforcement is intimately familiar, namely, the “reasonable suspicion” standard. It is the same standard applied in numerous settings. Police are experienced at having to articulate the basis upon which they formed a reasonable suspicion. They have to be, because any proceeding flowing from their reasonable suspicion will require them to recite the facts upon which it was formed. The test of reasonableness is a “third-party,” objective standard; it does not reside within the subjective control of the officer applying it. In other words, a judge or magistrate will determine whether the suspicion was indeed reasonable, and the officer making the determination must persuade the judge that, given the facts of the case, it was.

While one can imagine a “parade of horribles” in the application of this law, it is much easier to envision the patently constitutional implementation of it. Consider, for example, what is likely to be the most common way in which the law will be administered. An Arizona law enforcement officer notices a traffic violation and conducts a traffic stop. When, as is standard, the officer requests the driver’s license and vehicle registration, the failure to produce these documents could give rise to a “reasonable suspicion” that the driver is without legal authorization to be in the United States.

To be sure, there may be many reasons why someone may be without a driver’s license. Dispositive proof beyond a reasonable doubt is not, however, required for a police officer to form a reasonable suspicion. Nor should it be. As a society, we want police to investigate when they suspect a crime. We want police to be able to search for evidence of surreptitious criminal activity when they have reason to suspect it, not merely to escort criminals who brazenly offer proof of open and notorious crimes. Indeed, a reading of the statute appears to direct otherwise unwilling officers and agencies to cease turning a “blind eye” toward the presence of illegal aliens when encountered. SB 1070 effectively outlaws “sanctuary cities” in Arizona.

Arizona law enforcement officials are reportedly undergoing training on how to constitutionally implement the law. It is quite possible that the Justice Department has monitored the substance of this training, and is anticipatorily crafting a lawsuit to challenge the law’s implementation. If the announcement now, before the law has taken effect, is indicative of the intention to mount a facial challenge, it may be more of a political move than a legal one. But would it be considered a good political move if such a lawsuit fails? Would a successful defense of the statute encourage Texas, Colorado, California, or other states to follow Arizona’s lead?

There may be many reasons to disagree with the policy choices underlying SB 1070, including, for example, the fact that the statute appears to criminalize the “day labor markets” that form in the parking lots of home improvement centers. However imprudent the policy underlying SB 1070 might be, a politically motivated lawsuit might prove more imprudent.


11 thoughts on “Does the Federal Government Have Grounds to Sue Arizona?

  1. i’m not especially qualified to comment on this, so i’m going to leave it to the folks who are.

    Doesn’t the Arizona law just mirror federal immigration law?

    Brewer has responded to critics of her state’s law – commonly referred to as S.B. 1070 – by saying it replicates federal law.

    Brewer, April 30: Our law mirrors federal law. So, why is it bad for Arizona to mirror federal law? No one was crying out in the wilderness about the federal law being wrong or racial profiling. I don’t get it. It’s spin.

    To a degree, she’s right. Arizona’s new statute contains provisions that criminalize, at the state level, certain conduct that’s already a violation of federal immigration law. For instance, immigrants are required under both state and federal laws to carry their alien registration documents or other applicable records at all times – in federal law that’s under 8 USC sec.1304 and 8 USC sec. 1306.

    Other parts of the state law, though, don’t exist at the federal level. They include section 5A, making it illegal for a driver to stop and attempt to hire or to hire and pick up passengers, if that action impedes traffic; for a person to get into someone’s vehicle in order to be hired; or for an illegal alien to apply for work or solicit work publicly in the state. Most of this is aimed at day laborers and those who hire them.

    Another example: Section 2H allows any citizen to sue an official or agency in the state who “adopts or implements a policy that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law.”

    And section 2B of the new law requires law enforcement officers to try to check the immigration status of anyone they lawfully stop if they have “reasonable suspicion” the person might be an unauthorized immigrant. (More on this provision later).

    1. A few thoughts, which don’t come close to pointing out all the reasons why the Arizona law is bad:

      Why don’t we ask our local beat cops to try to enforce the tax code? It’s way too complicated and local gov’t has far too many other important things it should be doing. Immigration law is, arguably, more complex than tax law, but the biggest difference is that potential violators might be easier to spot because of their skin color. Putting aside equal protection problems on the face of this law, enforcement of some federal immigration laws is, at its core, at odds with what should be the primary function of local law SAFETY enforcement.

      There’s a big public safety problem with having a STATE try to enforce federal immigration laws. Let’s say I’m an undocumented person who’s been the victim of the crime. If I know that my local police officer is just as likely to arrest me while as my abusive American ex-boyfriend who gave me the black eye, I’m not calling 911. Domestic violence prevention groups HATE this law, with good reason.

      Police are meant to ‘protect and serve’ and there’s no qualification on that to only those with legal status. And the state should FIRST protect its own ‘citizens’ and, of course, that should mean ALL the people who are peacefully living, working, and raising families in their state.

      1. Whether the law is bad or not is a question distinct from whether the federal government can overturn a duly enacted state law which it deems misguided. And it may be bad politics as well as bad lawyering.

        Additionally, what those outside of Arizona have failed to discover is that Arizona is undergoing a violent crime wave, similar to that currently raging in Northern Mexico. This violence is tied to large drug enterprises, reportedly based in Mexico, but exacting violent retribution, on American soil, on anyone who gets in their way. SB 1070 was motivated, in part, from the exasperation of Arizona residents in dealing with this violence. This is why I criticize the criminalization of day labor markets, since these appear to have little to do with the drug gang violence.

  2. I know that all the people of my community are sick and tired of Illegal immigrants invading our country, and the government is doing nothing about it. Dont people see that these Illegal immigrants are rapidly changing our communities to the likes of a third world country? I am very proud that the state of Arizona is taking on this challenge that we all face here in the United States. I hope my state of Tennessee will soon follow Arizona’s new law. What dont people understand about Illegall immigrants, HOW ABOUT THE WORD ILLEGALL!!!!
    I realize this is a country founded by immigrants, but they were LEGALL IMMIGRANTS, that assimilated themselves to our cultue, and our language, these immigrants from south of the border are coming here ILLEGALLY,and trying to push there culture, and their language on us, and I can speak for many by saying WE ARE ALL SICK OF IT. Obama and the democratic party see’s potential voters to keep them in office, I see the distruction of America.

  3. We need this law SB 1070 in the State of Tennessee, I am Hispanic and I say YES! TO THIS LAW IN THE STATE OF TENNESSEE!



  4. Mari, You’ve got a few things wrong. The federal govt has always used state and local law enforcement officials to enforce federal laws. Your example of the tax code enforcement is off base as well. Do you really think that a tax-code offender is going to kidnap my kids in Phoenix? Or shoot at me on the border? And your example of the ILLEGAL being beaten by a “American” ex-boyfriend: This is EXACTLY why ILLEGALS shouldn’t be here. It isn’t safe for them either. In you scenario, if the ILLEGAL woman was here LEGALLY, she could call the cops with no hesitation. You just successfully argued for the passage of strong immigration laws like AZ’s. As for “people” peacefully living and raising their families… Sounds real nice, until one realizes that they BROKE THE LAW to get here. I was born in the US. If I went to Canada and them came back to the US by sneaking through the woods, I would be breaking a law, even as a US citizen. If I did that twice, it would be a felony. I would go to jail, pay a fine, have a record. Why, in your way of thinking, is it OK for ILLEGALS to BREAK THE LAW without consequences, while a LEGAL US citizen would be punished for the same offense? Give me a good answer that justifies this discrepancy in your argument, or accept that you are wrong.

  5. I agree with the above comment that there should not be a discrepency between border crossing enforcement between Mexico and US and other countries, however, the language used by many on this strand of comments reminds me of the infancy of the Nazi regime in Germany – frustration with Jewish influence and community power in Germany as well as a fear that they would change German culture. I’m not saying this is what is happening, and I definitely think we must do something to defend American citizens against drug crimes, but we have to be careful that in our desire to protect that we do not begin to hate and be motivated by hate.

    1. This Is in response to Johnny’s comment.
      ARE YOU SERIOUS ?? Comparing our immigration laws to the Nazi regime! You must be kidding me…And you think we need to defend our citizens against drug crimes!!
      What about the ILLEGALL IMMIGRANTS themselves, what about the drain on our healthcare system, what about the drain on our public schools, what about the drain on our social services,and what about the drain in general on our communities, and our way of life. As a former resident of California, and working in several hospitals in southern CA, I have seen the destruction first hand. 98% of the people in the emergency rooms in the Los Angeles area are illegalls.
      Who is paying for all that? Nobody here has said anything about hate, and I have several friends from Mexico, and South America, they are here legally, and I consider them Americans. If people are more worried about peoples feelings, rather than obeying the laws of our great country, this place is going to turn into one huge garbage dump. Besides the illegalls breaking our laws, do they seem concerned about what they are doing to our country, or concerned about breaking our laws? I think not..
      People say not all illegalls are bad, and most come for a better life, and more oppotunity, well I agree. But guess what, get in line with all the other people from other countries that want to do the same thing, and then you will be welcome. Breaking our countries laws, and burdening our country, just because you can walk here doesnt make it ok. By the way if you think our immigration polocies are bad, why dont you read Mexicos immigration polocies. You’ll be in for a big shocker.

  6. Here’s the deal morons, SB 1070 is constitutionally correct. it mirrors federal law,
    The feds have chosen NOT to enforce it ? ( More votes ) That is the ONLY reason for the ridiculous lawsuit brought by the treasonous leftist lawyer Clinton.
    She is a HUGE part of the reason this country is faltering in it’s duty to protect.

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