Lawyers for Governor Jan Brewer are in San Francisco this week in a bid to salvage a piece of the state's controversial law aimed at illegal immigration. Arizona Public Radio's Howard Fischer is there and files this report.
When Governor Brewer signed SB 1070 in 2010 it led to an immediate challenge by the Obama Administration. The U.S. Supreme Court last year threw out 3 key provisions, concluding they are preempted by federal law, but did agree to let Arizona require police officers to question those they've stopped about their immigration status. Since that time, a trial judge has enjoined the state from enforcing another provision. It makes it a state crime for anyone to harbor or transport an illegal immigrant while they're committing any other offense. Judge Susan Bolton ruled this part of the law suffers from the same legal problems as the other sections voided by the nation's high court - the state is illegally intruding on an area that Congress reserved for the federal government.
But Kelly Kszywienski, part of the governor's legal team, said that's not correct. "The Supreme Court has never held that states are not allowed to enact their own laws touching on immigration issues," Kszywienski said. "States can enact their own laws on areas of illegal immigration so long as it doesn't create a conflict or regulate in a field that Congress has covered and it furthers a legitimate state interest."
And gubernatorial press aide Matthew Benson said Arizona does have such a legitimate need. "Arizona is uniquely impacted by the effects of illegal immigration and the harboring and transporting of illegal aliens," Benson said. "We see it in our neighborhoods with the drop houses, with the sex trafficking, the torture and the rest." And he said the state's existing laws against things like kidnapping are insufficient to deal with the problem, saying police and prosecutors need a "special tool" to deal with it.
But Linton Joaquin, an attorney with the National Immigration Law Center, pointed out there already are federal laws making it a crime to harbor illegal immigrants. And he said if local police feel the need to go after the traffickers, they are free to arrest people and charge them with violating that federal law. But he said that's not what's happening here. "What the state is doing," Joaquin said, "is going beyond that and creating a state criminal provision that then would vest the state courts with the ability to interpret how the law's applied, whereas Congress didn't have that in mind. Congress specifically gave only an enforcement authority." And he pointed to last year's Supreme Court decision striking down parts of SB 1070. "You had the state creating its own criminal provisions with respect to unauthorized employment and with respect to the registration provision," Joaquin said. "Whereas the federal government has set these provisions, the state can't create, where you have a comprehensive scheme basically that the federal government has created, the state can't create its own."
Put more simply, if Congress has determined that is the way they want an immigration issue handled, the state law cannot conflict. Kszywienski conceded that point. For example, she acknowledged SB 1070 sought to make it a crime for someone not in this country legally to seek work here. She said the justices struck that down because it conflicted with federal law and the intent of Congress to make such activities a civil violation. But she said that's not the case here, saying Arizona law making it a crime to harbor an illegal immigrant parallels the federal law. "Certainly there are a lot of state criminal laws that criminalize conduct that is also a crime under federal law," Kszywinski said. "But just because the federal government has enacted a law or made certain conduct a crime, that doesn't necessarily mean that the state's law is preempted."
The appellate court is set to hear the arguments Tuesday.