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Arizona can prevail on immigration law

By Michael Hethmon, Special to CNN
  • Judge's ruling treated as big defeat for Arizona immigration law, says Michael Hethmon
  • He says the claims are overblown and much of the law has gone into effect
  • He says judge's ruling gave state some avenues for appeal and ways to amend the bill
  • Hethmon: Ruling won't stop other states from passing similar legislation

Editor's note: Michael Hethmon is a public interest lawyer and general counsel for the Immigration Reform Law Institute, the legal affiliate of the Federation for American Immigration Reform. He helped draft Arizona's SB 1070, the Support Our Law Enforcement and Safe Neighborhoods Act.

Washington (CNN) -- A district judge on Wednesday preliminarily barred the enforcement of two sections and two subsections of Arizona's new immigration law, SB 1070.

As was the case with the public reaction after Arizona Gov. Jan Brewer signed the law on April 23, we are again seeing wild claims about the matter -- in this case, about Judge Susan Bolton's order.

Commentators are making overblown statements about the judge's order without having actually read it. As a lawyer who supports the enactment of state laws that promote comprehensive immigration enforcement, I offer this initial analysis to the beleaguered voters of Arizona:

First: The judge lives in Arizona, likes Arizona and its people and sympathizes with your struggle to fight "rampant immigration, escalating drug and human trafficking crimes, and serious safety concerns." That's from the first sentence of her order.

Video: Battle over Arizona's law
Video: 'Repeal...or enforce the laws'
Video: The anger in Arizona
Video: Brewer 'relentless' about SB 1070

Second: The judge agrees that Arizona has a right to express its intent that "attrition [of the number of illegal immigrants entering the state] though enforcement" be the state policy. The judge rejected the administration's request that she find that SB 1070 is unconstitutional as a whole.

She clearly didn't buy into the claim that states are barred from enforcing our nation's immigration law. Bolton wrote that SB 1070 is not a "unified statutory scheme" that contradicts federal law and let it stand.

Third: Bolton upheld the anti-sanctuary provisions, including the provision allowing citizens to sue local governments (but not their police officers) that harbor and encourage illegal immigration. Bolton also approved of the tough new state felony laws that "mirror" federal immigration crimes such as smuggling, transporting, sheltering, harboring and inducing illegal aliens to remain, even if they do not follow the federal statute word-for-word.

This is bad news for cities such as Los Angeles or New Haven, Connecticut, that claim they can pick and chose which federal laws they will observe.

Notably, Bolton tossed two far-left theories advanced by U.S. Attorney General Eric Holder. One is that the Arizona criminal "mirror" statutes were a pre-empted "regulation of immigration," the theory used to sabotage California's Proposition 187 back in 1996. The other is that prosecuting alien smugglers in state courts somehow interferes with interstate commerce.

Fourth: Bolton zeroed in on the second sentence of Section 2 and held that the sentence should be broadly read to require that "every single person arrested" must be detained until federal agents definitively determine their immigration status.

That state policy, she wrote, would "burden" lawfully present aliens with prolonged detentions. Outside of sanctuary cities, police officers nationwide already have discretion to query a person's immigration status during a traffic stop or similar scenario, if the officer reasonably suspects the person is unlawfully present.

However, Bolton wrote Arizona couldn't require such queries by police by statute, taking at face value administration claims it would overload the federal government with requests for verification.

This reasoning has at least two problems.

Congress clearly required Homeland Security to respond to police requests for the immigration status of legal as well as suspected illegal aliens. The federal anti-sanctuary statute, 8 U.S.C. 1373(c), requires the federal government to verify state and local police requests regarding "the citizenship or immigration status, lawful or unlawful, of any person ..."

Moreover, in constitutional challenges brought before a law is implemented, the Supreme Court expects federal judges to uphold state laws unless they would be unconstitutional in every case. These are important points for appeal.

Fifth: Bolton preliminarily blocked enforcement of the new state misdemeanor of failure by aliens to register with the federal government (as in sneaking over the border) or to carry their registration documents in their personal possession.

The judge relied on a 1940 Supreme Court case, Hines v. Davidowitz, to conclude that Congress had "completely occupied the field" of alien registration. The problem with that theory is that the federal statute behind the Arizona law wasn't enacted until 13 years later, in 1952.

Even if the judge's theory survives appellate review, the easy fix is to drop the state penalties and instead simply prohibit restrictions on state police enforcing the federal alien registration law, a procedure that has been upheld in every federal appellate court to consider the question.

Sixth: Bolton upheld the constitutionality of punishing aliens who stand in public streets to solicit day labor. She had no choice. Several weeks ago, the 9th Circuit Court of Appeals upheld a similar law from California, finding it was a reasonable public safety measure that didn't infringe on the First Amendment right to free association.

Bolton did block the related provision making it a state crime for an illegal alien to solicit or perform work. I think this is the one area where there is an arguable legal dispute. What did Congress intend when it enacted the employer sanctions laws in 1986? But that important question is already before the U.S. Supreme Court, which just weeks ago agreed to review Arizona's 2007 law requiring statewide use of the E-Verify online work authorization verification system.

Seventh: Bolton also delayed implementation of the section of SB 1070 that confirms police authority to arrest without warrant aliens who are deportable under federal law. The judge said that if the provision were given the broadest possible interpretation, legal immigrants might be wrongly arrested by local officers. Only federal immigration judges can decide to remove legal immigrants.

Here again, the judge hinted that if the law were amended to clarify that the narrow interpretation was the proper one -- that local officers can detain criminal aliens convicted or wanted for deportable crimes in other states -- it would pass muster.

All the other provisions of the SB 1070, including the improved evidentiary standards for Arizona's E-Verify law, and the provision authorizing the impoundment of vehicles belonging to illegal aliens, passed muster and will be implemented.

When the order was issued, I was in a meeting with East Coast legislators from one of many states considering SB-1070 laws. They were concerned by the first news reports. But after we read the order together, their confidence was restored.

They resolved to include Bolton's technical corrections in the bill they're drafting and go forward with this vital program for protecting citizens' rights and the rule of law.

The opinions expressed in this commentary are solely those of Michael Hethmon.