Arizona & SB 1070

On April 23, 2010, Arizona Governor Jan Brewer signed the Support Our Law Enforcement and Safe Neighborhoods Act into law, following the bill’s quick approval in both the Arizona House and Senate. More commonly referred to as SB 1070, proponents argued that the legislation was aimed at combating illegal immigration in the state by requiring all resident aliens in Arizona to register their presence in the US with the government within 30 days of entering the country. It also requires law enforcement officials to inquire into the immigration status of anyone that they make “lawful contact with” if they have a “reasonable suspicion” that the person may be in the country illegally. To this end, SB 1070 criminalized the failure to provide documentation proving lawful immigration status, and granted state law enforcement expanded powers of investigation, detention and transportation. The law also criminalized attempts to employ or transport undocumented immigrants within the state, targeting traditional “day laborer” arrangements.

The bill’s passage was met with harsh criticism from both domestic and international sources. US President Barack Obama criticized the bill the day before its passage, saying its enforcement would “threaten to undermine basic notions of fairness that we cherish as Americans, as well as the trust between police and their communities that is so crucial to keeping us safe.” Nationwide rallies protesting SB 1070 were held in May 2010 and the US Conference of Mayors passed two resolutions opposing the law and supporting alternative federal immigration reform. The UN suggested that Arizona’s enforcement scheme might violate binding international human rights standards. Four days after Brewer signed the bill into law, JURIST Guest Columnist Marjorie Cohn wrote that SB 1070 effectively “criminalizes ‘walking while brown’ in Arizona” and ignores the many social contributions made by undocumented immigrants: “Instead of expressing gratitude for the back-breaking work migrant laborers contribute to our society, [this] is an increasingly virulent strain of racism that targets non-citizens.”

The Arizona legislature responded to this outcry by quickly passing an amendment to SB 1070, which was signed by Brewer on May 1, 2010. The amendment strengthened restrictions against using race or ethnicity as the basis for questioning immigration status and specified that law enforcement can only question the immigration status of suspects stopped pursuant to the enforcement of another law. JURIST Guest Columnist William G. Ross stressed in May 2010 that Arizona must be scrupulously careful to avoid even the appearance of any kind of discrimination against Latinos, arguing that the amendment is a step in the right direction:

Although some opponents of the status have alleged that it would permit random detention of any person suspected of being an illegal alien and therefore could subject legal aliens or U.S. citizens of Hispanic heritage to harassment and abuse or could discourage them from reporting crimes to law enforcement officials, the “lawful contact” language indicates that the statute requires a predicate for any inquiry into one’s citizenship status.

Despite this legislative change, numerous legal challenges have been filed to prevent the enforcement of SB 1070 or invalidate it outright. Two intial lawsuits were filed by the National Coalition of Latino Clergy and Christian Leaders and Arizona police officer Martin Escobar challenging the constitutionality of SB 1070. Escobar’s suit was dismissed for lack of standing by the US District Court for the District of Arizona in September 2010, which was subsequently upheld in a decision from the US Court of Appeals for the Ninth Circuit. However, the state of Arizona’s motion to dismiss the second class action lawsuit was denied in October 2010. Federal Judge Susan Bolton heard arguments in that case in August 2012 and upheld the provision that requires law enforcement officials to check the immigration status of persons they stop or arrest if they reasonably suspect those persons of being undocumented immigrants. Following the Supreme Court’s decision in Arizona v. United States, Judge Bolton declined to issue an injunction against the law, a decision which was upheld by the Court of Appeals for the Ninth Circuit following appeal.

The US Department of Justice (DOJ) filed its challenge to the law in July 2010, alleging that SB 1070 is preempted by federal immigration law under the Supremacy Clause of the US Constitution. In response, the US District Court for the District of Arizona issued a preliminary injunction against enforcement of several provisions in the law before it went into effect. Despite this initial success, many legal minds remained unconvinced of the legal soundness of the DOJ argument. JURIST Guest Columnist Jon Feere argued in November 2011 that preemption was “not an issue” in the case:

Like many states, Arizona is experiencing the fallout of the federal government’s failure to sufficiently enforce immigration laws. At least 25 states may follow Arizona’s lead. This is in addition to the many other states that have already passed legislation to make their jurisdictions less welcoming to those who violate immigration laws, both illegal aliens and their employers. It will be up to the Supreme Court to clarify the scope of preemption in immigration matters, but Arizona has a greater likelihood of success than most media outlets are predicting.

Arizona appealed the preliminary injunction and sought expedited review from the US Court of Appeals for the Ninth Circuit, which was denied. In response, Brewer filed a countersuit against the US government in February 2011, alleging violations of the Secure Fence Act of 2006 and other pieces of federal immigration law. However, Arizona’s counterclaim was dismissed by the district court on the grounds of claim preclusion.

The Ninth Circuit issued its opinion in Arizona’s appeal in April 2011, upholding the preliminary injunction issued by the district court. Arizona appealed the Ninth Circuit’s decision to the US Supreme Court in August 2011. The Supreme Court granted certiorari in December 2011, despite urging from the DOJ to deny the application. Oral arguments in the case of Arizona v. United States took place on April 25, 2012. On June 25, 2012, the Court struck down several portions of the law while upholding the controversial provision allowing police to arrest anyone they suspect of being an undocumented immigrant. Following the decision, Brewer expressed confidence that the enforcement of SB 1070 will not violate the Constitution and a realization that domestic and international eyes will be on Arizona as the law goes into effect within the state.

In an unrelated lawsuit challenging SB 1070, the US District Court for the District of Arizona has ruled that Arizona residents have standing to challenge the law’s constitutionality. The court in that case also considered arguments as to whether the citizens challenging the immigration law should be certified as a class.

‘Copycat’ Legislation

Arizona’s SB 1070 was not the first state-sanctioned piece of legislation seeking to curb the issue of illegal immigration in recent years. The Oklahoma Taxpayer and Citizen Protection Act of 2007 was struck down by the US Court of Appeals for the Tenth Circuit in February 2010, and is just one example of many state attempts to legislate the issue of undocumented immigrants. However, the aftermath of SB 1070 has inspired a number of state legislatures to enact individual solutions to immigration problems. In the months following the adoption of Arizona’s controversial immigration policies, the state legislatures of South Carolina, Oklahoma, Utah, Indiana, Georgia, Mississippi and Alabama approved legislation similar to SB 1070. In some cases, the laws were even directly modeled on the language of Arizona’s legislation.

Following the adoption of these so-called “copycat” bills, various legal challenges were filed to prevent their enforcement in both state and federal courts. Alabama has been at the center of particular legal controversy since its restrictions on undocumented immigrants were decried as the most severe in the country. The Beason-Hammon Alabama Taxpayer and Citizen Protection Act, commonly referred to as HB 56, has been the subject of three different lawsuits with plaintiffs including the American Civil Liberties Union (ACLU), the Southern Poverty Law Center (SPLC), the National Immigration Law Center (NILC), the DOJ, and various religious organizations. The consolidated lawsuits have drawn supporting briefs from 16 foreign countries. Alabama Governor Robert Bentley later signed revisions to HB 56 that clarify the types of documents that can be used for identification, ease measures against subcontractors that hire undocumented immigrants and contain exceptions for religious purposes.

The US Court of Appeals for the Eleventh Circuit issued an injunction preventing the enforcement of HB 56 in October 2011. However, a controversial element of HB 56 requiring public schools to check the immigration status of their students has continued to provoke conflict between state and federal officials. JURIST Guest Columnist Kevin Johnson argues that this back-and-forth between state and federal officials over the legitimacy of HB 56 underscores the need for federal immigration reform, and invokes the era of civil rights:

Oddly out of touch with US civil rights history, Alabama Attorney General Luther Strange has questioned Perez’s authority to ask for basic enrollment information from the school districts. Such objections highlight for the nation the civil rights implications of the Alabama immigration law and remind people of the parallels between HB 56 and Alabama’s strident — at times, violent — stand against African Americans seeking to desegregate the public school system in the 1950s and 1960s. Unfortunately, until Congress enacts some kind of comprehensive immigration reform or the Supreme Court makes clear what role the states have, if any, in immigration enforcement, the nation can expect state legislatures to continue to pass immigration enforcement laws like Alabama’s.

Following the injunction from the Eleventh Circuit, the DOJ has filed a new action to strike down HB 56 in its entirety. This has prompted efforts within the state to revise the law. On April 20, 2012, the Alabama House of Representatives adopted amendments to HB 56, which distinguished some of the more controversial elements of the bill in anticipation of the state’s legal defense of the law.

In August 2012, the US Court of Appeals for the Eleventh Circuit struck down provisions of HB 56 as well as Georgia’s “copycat” immigration law, HB 87. Following the opinion [PDF], Alabama state officials requested a rehearing; the Eleventh Circuit court twice denied these requests. Alabama Attorney General Strange then appealed the ruling to the Supreme Court in January 2013; the appeal was denied in April 2013. Following the Eleventh Circuit striking down provisions of Georgia’s HB 87, the US District Court for the Northern District of Georgia lifted a preliminary injunction on the upheld provisions of the Georgia law and subsequently permanently banned enforcement of its provision prohibiting knowingly transporting or harboring an illegal immigrant during the course of a crime. The Georgia General Assembly reacted to these rulings by passing an expanded version of the bill requiring stricter enforcement.

In February 2013, the ACLU filed another lawsuit specifically challenging a portion of Alabama’s law that requires law enforcement to publish a list of immigrants who may be undocumented, which the organization decried as an immigrant “black list.”

The US District Court for the Southern District of Indiana issued an opinion [PDF] in March 2013 striking down provisions of Indiana’s strict immigration law that allowed police to arrest non-citizens without a warrant and prohibited the use of consular IDs as forms of identification.

Driver’s Licenses

In the past decade, one prevalent issue surrounding immigration laws has been the issuance of driver’s licenses to illegal immigrants. States such as Connecticut, Illinois, New Mexico, Utah and Washington allow illegal immigrants driving privileges through driver’s licenses. Some of the arguments in favor of the licenses include: promotion of road safety, allowance of immigrants to drive to work to support their families and reduction of unlicensed drivers on the road. Those opposed to the licenses being issued are concerned with fraud, national security and the encouragement of employment of illegal immigrants over US citizens. States such as Ohio, Georgia, and Arizona allowed driver’s licenses for illegal immigrants before revoking them, citing reasons such as identity fraud, drawing illegal immigrants from other states, taking jobs away from US citizens and political pressure.

In Illinois, Governor Pat Quinn signed a bill in January 2013 that permitted immigrants to obtain temporary driver’s licenses if they could provide proof of one-year state residence. These licenses could not be used for voting, purchasing firearms or boarding airplanes. In California, Governor Jerry Brown signed a bill that would allow certain illegal immigrants who came to the US as children, including those who do not have social security numbers, to obtain state driver’s licenses. The bill also contained provisions that would allow those who entered the US as children under the age of 16 and are currently under the age of 30 to obtain work permits. On March 25, 2013, the Maryland Senate approved a bill that would increase the availability of driver’s licenses for illegal immigrants as long as they could show proof that they have filed Maryland state income taxes. These licenses would not be able to be used as federally accepted identification.