Arizona's Immigration Law Likely Doomed in Court

As an expression of popular anger in Arizona, the state's dramatic new anti-immigration law is loud and clear. As an expression of constitutionally permissible law, it is thoroughly flawed. If you are into that sort of thing, better enjoy the white-hot coverage of the immigration "showdown" now because in a few weeks, or maybe even a few days, the effect of the state law is likely to be stayed by the federal courts. And then the debate will go back to where it belongs, onto Capitol Hill and away from the courts, at least for the time being.

Probably selected at random through an internal docket lottery, or perhaps discretely assigned to the chief trial judge, the first federal jurist to review the law will be quickly asked to balance the alleged harm (to the illegal immigrants) of allowing its enforcement pending judicial review against the purported harm (to the rest of the population) of stopping its enforcement immediately until a final court ruling is issued. The judge also will have to evaluate right from the start whether the Arizona legislation is likely to pass constitutional muster when its terms are evaluated on their merits following trial.


Under the new law, Arizona police now are required to stop and question anyone they "reasonably suspect" of being undocumented. It will be a crime to hire "day laborers" or to transport them to their jobs. Government agencies that hinder enforcement of immigration laws will be made more vulnerable to civil litigation by state residents. The illegal immigrants who are picked up will be fined. Legal immigrants and/or native-born Americans who are caught up in the sweep, on the other hand, will be unable to successfully sue for the deprivation of their rights because of the governmental immunity that attaches to most police functions.

The candid mantra of the legislation is "attrition through enforcement" and the key question will be how far state and local authorities may go in using enforcement to reduce the number of illegal immigrants here already. Supporters of the measure will say it's less about immigration -- after all the people to be stopped and rounded up already are in Arizona -- and more about local law enforcement, an area of traditional state authority to which the federal courts are routinely deferential. Critics of SB 1070 will say that any local effort to deprive illegal immigrants of certain federal rights plainly violates not just federal policy but the Supremacy Clause of the Constitution.

The folks who believe the Arizona measure will quickly be struck down as unconstitutional point to the federal government's preeminence over immigration issues. And they point particularly to California's ill-fated Proposition 187, a ballot initiative in 1994 that would have denied health care, education and welfare benefits to illegal immigrants. The federal courts wouldn't let most of Prop 187 through and eventually, five years later, the state's leaders reached a settlement that better protected the immigrants.

You could look at Prop 187's history two ways. Supporters of SB 1070 will rightly say there was no definitive Supreme Court ruling (or 9^th U.S. Circuit Court of Appeals ruling) that explicitly declared the states could not enact immigration policies that contradict federal ones. Opponents of Arizona's measure will counter that the legal case against the current legislation is even stronger than was the case against Prop 187. The latter sought only to deny affirmative benefits; the former seeks to seize the liberty and property of illegal immigrants.

For all these reasons and many more, it's hard to see any judge, especially a life-tenured federal one, allowing Arizona's Hispanic population (and anyone else who might "look" like an illegal immigrant) to endure the type of "enforcement" contemplated by SB 1070. This is especially so since it will likely take years before the matter is heard and definitively resolved on the merits before the 9^th U.S. Circuit Court or the United States Supreme Court. In other words, the balance of harm calculation clearly favors those who will challenge the measure and not those who seek to implement it. The law simply won't stand.

It's been a long, long time -- maybe as far back as the Terri Schiavo fiasco in 2005 -- since so much sturm und drang was spent on such a legally untenable legislative effort. I suppose it's possible that some long-term good on immigration will come out of the fact that Arizona now has grabbed everyone's attention. But in this election year I sure wouldn't bet on it.