SB 1070 was a Dud from its Inception
Opinions expressed are those of the author.
SB 1070 was a dud from its inception
No surprise Bolton blocked parts of the poorly drafted bill
by Robert Robb - Jul. 30, 2010 12:00 AM
The Arizona Republic
The injunction by Judge Susan Bolton against major portions of Senate Bill 1070 brought into sharp relief a reality too long ignored by its proponents: The bill was poorly conceived and even more poorly drafted.
The principal objective of the legislation was to get local law enforcement more involved in enforcing immigration laws. This is something the public clearly wants.
There was a way to bring this about that didn't raise significant constitutional issues. Local police have authority to enforce federal laws. The Legislature could have simply instructed local police departments to stop turning a blind eye to illegal immigration and include violations of federal immigration laws in the wide range of infractions they enforce. Immigration violators would then be turned over to federal authorities to be processed in the federal system.
After Bolton's injunctive relief, that is in essence what remains of SB 1070.
Instead, state legislators sought to set up separate state immigration crimes and a separate state system of punishment. Instead of turning over immigration violators to federal officials, they could be charged, prosecuted and incarcerated in the state system.
This was a dumb idea on two fronts. First, it clearly infringed on federal prerogatives regarding the regulation of immigration and invited the legal challenge Bolton has preliminarily upheld. But more importantly, why should state taxpayers pick up the tab for prosecuting and incarcerating illegal immigrants? Why is that a good idea?
Legislators then compounded their poor judgment with even poorer execution.
The most egregious example of SB 1070's poor draftsmanship was the adoption by reference of the federal requirement that immigration papers be carried at all times. Bolton enjoined that provision, but needn't have bothered. The bill itself nullifies the violation by saying that it doesn't apply to anyone in the United States legally - in other words, to anyone who would have papers to carry in the first place.
The most consequential instance of poor draftsmanship is the provision forbidding the release of anyone "arrested" until their immigration status is determined. Taken literally, which is the way legislation should be interpreted, this would have outlawed the cite-and-release approach law enforcement takes for most minor offenses. Such people are technically "arrested." Mercifully, Bolton enjoined this provision before the havoc and confusion it would have wreaked was unleashed.
SB 1070 supporters claimed that the new state immigration crimes simply mirrored federal law. In some cases that was true, as with the section dealing with registering and carrying immigration papers. In some cases, as with transporting and concealing, there are changes from the federal law whose import isn't clear. And in some cases, such as making it a state crime for illegal immigrants to work, there simply isn't a federal analog.
The fact that SB 1070's prime architect, state Sen. Russell Pearce, was repeating that SB 1070 merely enforced federal law, which is manifestly false, in reaction to Bolton's injunction is revealing. I don't think Pearce is consciously lying. I don't think he really knew what he was doing.
Some supporters are denouncing Bolton as an activist judge, making up the law rather than applying it.
There is a lot of such judging, and I regularly rail against it. Arizona was the victim of activist judging last week in the same-sex benefits case, when a federal judge said that the U.S. Constitution did not allow state lawmakers to exercise discretion regarding whose family benefits taxpayers would subsidize.
But that was not the case with Bolton and SB 1070. Arizona established separate state immigration crimes and a separate state system of punishment. The feds sued, saying that treaded on their toes. The U.S. Constitution clearly gives pre-eminence to the federal role in immigration. Bolton did a workmanlike job of applying that principle to the mess of a piece of legislation Pearce and crew enacted.
Those who want state and local officials to do what they can to reduce the incidence and consequences of illegal immigration in the state need to start demanding more than just action. They need to start demanding competence as well.
Reach Robb at robert.robb@arizonarepublic.com or 602-444-8472.
Read more: http://www.azcentral.com/arizonarepubli ... z0vEMSmm3m
