KNAU and Arizona News
4:33 pm
Fri July 23, 2010

Federal Judge Weighing Whether to Block some Provisions of SB1070

Phoenix, AZ – In two separate lawsuits, Judge Susan Bolton is being asked to
issue an injunction against various provisions of SB 1070. To do
that she needs to conclude that there is some evidence the
sections are illegal. And she needs to believe that allowing the
law to take effect will cause some irreparable harm. During the
day-long court sessions, Bolton grilled attorneys about the bill,
point by point, indicating by her questions there are some
sections she thinks may be legally suspect. One of the more
controversial makes it a state crime for a non-citizen not to
carry federally required identification documents. Foes of the
law say that language effectively allows the state to imprison
people whose only offense is being an illegal immigrant. Edwin
Kneedler, a deputy federal solicitor general, said that not only
is beyond the state's power but that it actually exceeds federal
laws which, absent more, do not make being in this country
without documentation a crime. Bolton, by her questioning, seemed
to agree. But John Bouma, the attorney for Gov. Jan Brewer, said
after the hearing it's not a big deal if the judge voids that
language.

(She could strike section 3. And that wouldn't necessarily affect
the purpose or the effect of the statute in the long run.)

But that wasn't the only question Bolton had about the
legislation. She zeroed in on another section which says that
police cannot release anyone they have arrested until they first
determine that person is in this country legally. Omar Jadwat of
the ACLU said that an arrest can include simply issuing a
citation and letting the person go. He said that it could take an
average of 88 minutes to get the required response on a federal
inquiry. Bouma said it's more like 10. But in either case, Bolton
said it might be inappropriate to detain someone for longer than
necessary simply to meet the requirements of 1070. Bouma insisted
that the intent of lawmakers was that the mandate apply only to
people actually booked into jail. The judge responded that isn't
the way its worded. He conceded the point.

(I think I said it might have been inartfully worded.)

Brewer, who attended the second of Thursday's two hearings -- the
one where the law is being challenged by the Obama administration
-- sidestepped questions about whether the judge's questions
suggest the law is poorly worded.

(Judge Bolton asked very good questions. I believe that they were
well intended to make all of us understand and to listen to
exactly what she was saying. Certainly, there's always discretion
when you go into a courtroom. And that's why we're in court.)

But not all of Bolton's questions were aimed at the governor's
defense of the law. Jadwat attacked another provision of SB 1070
which makes it a crime for someone not in this country legally to
seek work in Arizona. He said because Congress never made
soliciting employment by illegal immigrants a crime, it precluded
the states from doing that, too. But Bolton pointed to other
places in immigration law where Congress specifically preempted
state action. The judge said there is no such language here. But
Jadwat said that is irrelevant.

(Express preemption is one kind of preemption. There are other
kinds of preemption as well. And each of those kinds of
preemptions, in this case, the kinds that are not express,
operate to invalidate Arizona law.)

Bolton gave no indication when she will rule -- and if that will
come before the law is set to take effect next Thursday. But she
did make it clear she will not invalidate the entire statute. She
said some sections of SB 1070 do not directly relate to the
questioning or detention of suspected illegal immigrants by state
and local police. The judge also noted a federal appeals court
recently upheld ordinances of a California community restricting
where day laborers can solicit employment. Bolton said that
likely means there's nothing wrong with similar language in SB
1070 which makes it illegal to stop on public streets to hire
temporary workers, or to try to seek employment in those
situations. For Arizona Public Radio this is Howard Fischer.