Illegal-immigration fight gets more complicated

azcentral.com
by Robert Robb, columnist
Sept. 30, 2011 12:00 AM
The Arizona Republic

The two most controversial provisions of Arizona's anti-illegal immigration law (SB 1070) - making illegal presence a state crime and requiring local law enforcement to follow up on reasonable suspicion of illegal status - have been enjoined by federal judges.

On Wednesday, however, a federal judge upheld the same provisions in a recently enacted Alabama law. That sets the stage for a more protracted and closer legal battle than SB 1070 opponents anticipated - a battle that will be complicated by the Obama administration's plan to enforce immigration laws only against illegal immigrants who commit other serious crimes.

The legal case against the requirement to follow up on reasonable suspicion of illegal status has always been weak. What the provision requires is that local law enforcement check with federal authorities when such reasonable suspicion arises in the context of a lawful stop for some other purpose.

The Obama administration says this is pre-empted by federal law because it doesn't want the calls and fielding them would be a burden and a diversion from its priority of going after illegal immigrants who have committed serious crimes.

Federal law, however, flatly says that the federal government shall respond to all inquires about legal status from local officials. And pre-emption only occurs when there is a conflict with federal laws enacted by Congress, not administrative preferences or practices.

In the Arizona case, Judge Carlos Bea made that point in a 9th Circuit dissent. In the Alabama case, Judge Sharon Blackburn quoted Bea's dissent and adopted its reasoning.

I've always assumed that, at the end of the day, this provision would be upheld. It's basically a state legislature dictating priorities for local law enforcement. It might be a bad idea (I think it is). But it's not really any of the federal government's business.

This reasonable suspicion follow-up has gotten most of the attention. In the hands of someone who might abuse it, say Sheriff Joe Arpaio, it could become an instrument of racial discrimination. But Arpaio could implement such a policy independent of state legislation mandating it.

The heart of SB 1070, however, was always making illegal presence a state crime. This was the provision that would enable Arizona, and Alabama, to do the job of enforcing immigration laws that the feds can't or won't do.

I have always assumed that this provision would be found to be pre-empted by a comprehensive federal scheme to deal with immigration violations. Local law enforcement could beef up efforts to identify illegal immigrants. But after identification, they had to be turned over to the feds for processing.

That's the way every federal judge who has looked at the Arizona law, including Bea, saw it. But given Blackburn's close reasoning on the matter and the Obama administration's recent administrative amnesty, I'm no longer so sure.

According to Blackburn, there is no congressional statement of an intent to pre-empt in this area. And absent that, Alabama's decision to create a state crime that mirrors federal immigration crimes enacted by Congress can't be argued to be inconsistent with Congress' purpose.

The complication is that the federal immigration crimes in question are pretty much a dead letter. There are federal criminal statutes which illegal immigrants perforce violate. But for a long time, illegal presence has been treated as a civil rather than a criminal matter - leading to deportation, not fines or jail.

A more important complication is that the Obama administration has declared it isn't going to enforce laws against illegal presence as a civil matter, except against those who commit other serious crimes. Basically, the Obama administration is saying, we're not going to enforce the immigration laws. But we don't want states to do so either.

That's going to be a difficult argument to sustain.

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