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.