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Focus Remains on Arizona as Justice Department Files Lawsuit against SB 1070

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Focus Remains on Arizona as Justice Department Files Lawsuit against SB 1070

Attorney General Eric Holder has indicated that if SB 1070 is allowed to take effect, the federal government may consider filing another lawsuit against Arizona if there is evidence that the law leads to racial profiling.

Just days after President Barack Obama gave his first major address on immigration since assuming office, the Justice Department brought a lawsuit against the state of Arizona, challenging the constitutionality of its new immigration law.

In his July 1 speech, Obama asked Republicans and Democrats to "put politics aside" and work toward passing an immigration reform bill that would include stepped-up enforcement against businesses that hire unauthorized immigrants, changes to the current legal immigration system, and a pathway to legal status for some unauthorized immigrants currently living in the United States. He also acknowledged the national controversy and heated reactions Arizona's immigration law (SB 1070) has generated.

But the president's speech, intended to show his renewed commitment to immigration reform, was overshadowed by SB 1070, which Arizona Governor Jan Brewer signed in April and which is scheduled to take effect July 29.

SB 1070 is widely considered the toughest immigration enforcement measure any state has enacted. It requires law enforcement officers to inquire about the immigration status of anyone they stop, detain, or arrest for a state or local offense if the officers have a "reasonable suspicion" the individual is an unauthorized immigrant. SB 1070 also makes it a state crime for non-U.S. citizens to fail to carry proof of their immigration status — the first state law to do so.

In its lawsuit, filed July 6, the Justice Department argues that the U.S. Constitution prohibits Arizona from "supplanting the federal government's immigration regime with its own state-specific immigration policy." While individual police officers and coalitions of business, civil rights, and religious groups have filed six other lawsuits against SB 1070, the Justice Department's lawsuit is significant because the federal government rarely intervenes in state litigation.

The thrust of its complaint is that federal law preempts the Arizona law, both in its entirety and its individual provisions. Specifically, the suit alleges that the Arizona law's principle purpose is to pursue a public policy of "attrition through enforcement" by mandating that law enforcement agents check the immigration status of those suspected of being unauthorized immigrants.

Federal immigration law, in contrast, is aimed at balancing penalties for unauthorized immigration with considerations that "take into account other uniquely national interests and priorities," including international trade, the rights of legal immigrants and foreign-born visitors, and global humanitarian concerns.

The Justice Department also argues that SB 1070 will force the federal government to divert resources away from targeting dangerous criminal aliens so that it can respond to an influx of ordinary immigration-status violators identified by Arizona officials under the new state law.

In addition, the lawsuit alleges that federal law preempts new state criminal sanctions for immigrants who fail to carry proof of their immigration status, because the federal government already has a comprehensive scheme to regulate the entry and presence of immigrants in the country. Finally, the complaint states that SB 1070 will interfere with U.S. foreign-policy objectives.

Significantly, while the Justice Department's lawsuit points out that SB 1070 could lead to the harassment of legal immigrants and U.S. citizens, who may be unable to show proof of their immigration status, it does not focus on the law's potential for racial profiling. This distinguishes it from some of the other lawsuits, as well as from the major argument immigrant advocates and many politicians are making.

Attorney General Eric Holder, however, has indicated that if SB 1070 is allowed to take effect, the federal government may consider filing another lawsuit against Arizona if there is evidence that the law leads to racial profiling.

Immigrant advocates and the plaintiffs in the other SB 1070 lawsuits have lauded the Obama administration's decision. They believe the federal suit could dampen efforts to enact "copycat" bills elsewhere. Thus far, state legislators in more than a dozen states have announced plans to introduce legislation modeled after the Arizona bill, though none have been enacted.

Democratic and Republican members of Congress from Arizona and many other states have opposed the federal lawsuit. Senators John McCain and Jon Kyl, both Republicans, issued a joint statement criticizing the lawsuit on grounds that it is "too premature" since the new law has not yet been enforced. Representatives Harry Mitchell, Gabrielle Giffords, and Ann Kirkpatrick, all Democrats, claim it is a "distraction" from the issue of securing the border.

At the same time, national and local protests against SB 1070 have continued. In June, the U.S. Conference of Mayors, a nonpartisan group representing larger U.S. cities, approved a resolution voicing strong opposition to the Arizona law. On July 10, immigrant advocates in Massachusetts rallied in opposition to the law as Brewer arrived in Boston to attend a National Governors Association meeting.

Musicians including Kanye West, Rage Against the Machine, and Maroon Five signed on to a different form of protest, pledging not to perform in Arizona. Meanwhile, advocates have placed strong pressure on Major League Baseball (MLB) to move the 2011 All Star Game from Phoenix.

On the other side, some states and localities are beginning to back away from public opposition, as politicians respond to wide public support for SB 1070. In Boulder, Colorado, the city council did not pass a resolution condemning the Arizona law. Utah state legislators criticized Salt Lake City Police Chief Chris Burbank's public opposition to SB 1070 and pledged to introduce their own version of the Arizona law during the next legislative session.

Press reports have also suggested that many Democratic governors are concerned about the potential political fallout from the administration's decision to sue Arizona — especially in an election year.

The debate has also continued to ripple across the Americas. The six governors of Mexican states bordering the United States sent a letter to Brewer informing her they would not attend the 28th annual United States and Mexico border governors' conference, to be held in Phoenix in September. Secretary of State Hillary Rodham Clinton was peppered with questions about the Arizona law during a four-day trip through Colombia, Ecuador, and Peru.

On July 22, U.S. District Court Judge Susan Bolton is scheduled to hear arguments on the motion to enjoin the law. Immigration experts agree that the controversy is unlikely to die down anytime soon, regardless of Bolton's ruling.

If the Arizona law survives legal challenges, other states are likely to enact their own versions of SB 1070. As Obama noted in his recent immigration speech, "We face the prospect that different rules for immigration will apply in different parts of the country — a patchwork of local immigration rules where we all know one clear national standard is needed."

Supreme Court to Hear Case on 2007 Arizona Law

In an important development that will inevitably invite speculation about its impact on the prospects for Arizona's latest immigration law, the U.S. Supreme Court agreed to hear arguments on the legality of the 2007 Legal Arizona Workers Act.

The law, which went into effect in January 2008 despite attempts to block it, penalizes employers found to have "knowingly" hired unauthorized immigrants with the suspension or revocation of their business licenses. It also requires all Arizona employers to use the federal E-Verify system to confirm that new employees are authorized to work.

In September 2008, the U.S. Court of Appeals for the Ninth Circuit affirmed the decision of a federal district court judge in Phoenix and held that federal law did not preempt the Legal Arizona Workers Act. A coalition of business, labor, and civil rights groups appealed to the Supreme Court, which solicited a brief from the Obama administration.

The administration, via the U.S. Solicitor General's office, urged the Supreme Court to accept the case, saying the law's provisions regarding the suspension and revocation of business licenses warranted review.

Policy Beat in Brief

Increased Border Security Funding. The U.S. House of Representatives has approved $701 million in emergency funding for enhanced border security measures. The funds would mainly pay for 1,200 new Border Patrol agents, as well as additional Immigration and Customs Enforcement (ICE) agents, government attorneys, and immigration judges. Also, Customs and Border Protection would be able to purchase two drones for patrolling the U.S.-Mexico border. In June, President Barack Obama said he would deploy up to 1,200 National Guard troops to the Southwest border and allocate $500 million to border security efforts. Obama later asked Congress for $600 million, an amount the House increased to $701 million.

  • Read the text of the appropriations bill, HR 4899.
  • Read more about Obama's decision to deploy the National Guard in the June 2010 Policy Beat.

TPS Registration Extension for Haitian Nationals. The registration deadline for Haitian nationals seeking Temporary Protected Status (TPS) has been extended from July 20 to January 18, 2011. U.S. Citizenship and Immigration Services (USCIS) is extending the deadline because the agency believes many Haitians need additional time to establish eligibility and secure the funds to pay the application fee. Haitian nationals became eligible for TPS, which includes work authorization and protection from deportation, in January 2010 after a 7.0 earthquake devastated the country. As of June 4, only 51,000 Haitian nationals had applied for the program, though DHS had initially estimated 100,000 to 200,000 to be eligible.

In related news, USCIS has extended TPS for an additional 18 months to qualified nationals from El Salvador who already hold TPS status. Roughly 217,000 Salvadorans may be eligible to reregister.

Get the latest statistics on Haitian immigrants in the United States.

Coalition of U.S. Mayors for Immigration Reform. A new coalition of big-city mayors and corporate executives plans to push for immigration reform and spur U.S. economic development by helping attract and retain immigrant entrepreneurs, talented professionals, and skilled workers. The coalition, named Partnership for a New American Economy, includes the mayors of New York, Los Angeles, Philadelphia, and Phoenix, as well as News Corporation Chairman Rupert Murdoch and the chief executives of Hewlett-Packard, Boeing, Disney, and Marriott. According to New York City Mayor Michael Bloomberg, who spearheaded the coalition, the group aims to publish studies, conduct polls, and launch public education campaigns.

New Puerto Rican Birth Certificates. As of September 30, USCIS will not accept birth certificates issued in Puerto Rico prior to July 1, 2010, as proof of identity for various immigration applications. The government of Puerto Rico began issuing new birth certificates July 1 and voiding any birth certificates that were issued prior to that date in an effort to prevent identity fraud. A 2008 federal investigation uncovered 14,000 stolen birth certificates that had been issued in Puerto Rico.

State and Local Policy Beat in Brief

Tennessee Immigration Law. Going beyond the agreements some cities and counties have made with the federal government, Tennessee will require law enforcement agents throughout the state to verify the immigration status of all individuals arrested and booked at state and local jails starting January 1, 2011. According to the new law, if the "keeper of the jail" cannot verify an individual's immigration status, or suspects that an individual is an unauthorized immigrant, jail officials will notify ICE. Agencies that have already signed memoranda of understanding with the federal government to cooperate on immigration enforcement are exempt from the new requirements.

Visit the MPI Data Hub for the latest stats on immigrants in Tennessee.

Immigration Enforcement Law in Fremont, Nebraska. Voters in Fremont, Nebraska, have approved a ballot initiative that makes it illegal for landlords in Fremont to rent to unauthorized immigrants and requires all employers within the city to use the federal E-Verify program. The new ordinance, modeled on similar measures in Hazleton, Pennsylvania, and Farmers Branch, Texas, became a ballot initiative after the Fremont City Council voted against it. Opponents of the measure cited the potentially high cost of defending the measure in court. Farmers Branch city officials estimate they have so far spent $3.2 million defending their rental ordinance.

  • Read the text of the Fremont, Nebraska ordinance.
  • Read more about the ongoing lawsuit over a similar ordinance in Farmers Branch, Texas, in the April 2010 Policy Beat.

Visit the MPI Data Hub for the latest stats on immigrants in Nebraska.

E-Verify Laws in Mississippi, South Carolina, and Utah. Laws in Mississippi, South Carolina, and Utah governing employer participation in E-Verify went into effect on July 1. Mississippi now requires all private employers with at least 30 employees to use the E-Verify system. All employers in South Carolina must use E-Verify, or confirm that new employees have a valid South Carolina driver's license or a license from another state that requires proof of legal status for its driver's licenses. The Utah law requires all private employers with 15 or more employees to enroll in the E-Verify system.

Visit the MPI Data Hub for the latest stats on immigrants in Mississipi, South Carolina, and Utah.

Immigration Measures in Massachusetts. The new Massachusetts budget will eliminate state-funded health care for many legal immigrants in January 2011 unless the federal government provides additional funding to the state. Conspicuously absent from the state budget bill, however, were several controversial immigration enforcement provisions that the state senate had added in May. Those measures would have made unauthorized immigrants ineligible for in-state tuition at state universities and would have set up a 24-hour hotline for individuals to anonymously report businesses suspected of hiring unauthorized immigrants.

  • Read Governor Deval Patrick's remarks in signing the 2011 budget.
  • Read more about previous proposed cuts for immigrant health care in Massachusetts in the August 2009 Policy Beat.

Visit the MPI Data Hub for the latest stats on immigrants in Massachusetts.

Secure Communities in all Counties in Florida and Virginia. All Florida and Virginia counties are now enrolled in the ICE Secure Communities program, which automatically checks the immigration status of all individuals booked at state and local jails by transmitting detainees' fingerprints to databases maintained by the Department of Homeland Security (DHS). If the fingerprint checks reveal that a detainee is either unauthorized or a legal immigrant who has committed a crime that renders him deportable, the system immediately notifies ICE. As of mid-July, Secure Communities was in place in 448 jurisdictions across 25 states. ICE plans to make the program available to all state and local jurisdictions by 2013.

  • Read the ICE press release announcing the enrollment of all Florida counties in the Secure Communities program.
  • Read the ICE press release announcing the enrollment of all Virginia counties in the Secure Communities program.
  • Read more about Secure Communities in the June 2009 Policy Beat.

Day-Laborer Ordinance in Redondo Beach, California. A 1989 law prohibiting day laborers from soliciting employment in Redondo Beach, California, does not violate the First Amendment protections of the Constitution, according to a ruling from a federal appeals court that reverses the decision of a lower court. The law prohibits any individual from standing on a street or highway to solicit or attempt to solicit employment from motor vehicle drivers. Also, drivers cannot stop for the purposes of hiring or attempting to hire another individual for employment. The appeals court found that the law was "narrowly tailored" to serve a significant government interest and noted that it had already upheld a similar law in Phoenix, Arizona.

Visit the MPI Data Hub for the latest stats on immigrants in California.