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An SB 1070 Prediction: The Feds Will Come to the Rescue

LINE IN THE SAND

The nativist wagons are circled when it comes to SB 1070 and the seven lawsuits filed against it, including one by the U.S. Department of Justice.

Governor Jan Brewer's legal defense fund for Arizona's new breathing-while-brown statute has raised $1.3 million and counting in private donations coming from every state in the nation.

Polls consistently show that Americans support the law by nearly 60 percent. Several states are gearing up to pass their own versions of SB 1070, which essentially criminalizes unlawful presence in the state of Arizona and mandates that police officers verify immigration status after a stop when "reasonable suspicion" exists that a person is an illegal alien.

Even more broadly, SB 1070 gives police officers the authority to make a warrantless arrest if "the person to be arrested has committed any public offense that makes the person removable from the United States."

Brewer essentially won the lottery by signing SB 1070. Before doing so, the polls showed our accidental governor's bid to get elected to be touch-and-go. Now she's riding so high that her main political rivals have bailed from the GOP primary, and her Democratic challenger Attorney General Terry Goddard even looks like a goner.

But weep not. The cavalry is on the way, and the cavalry is not on the side of the nativists.

It's scheduled to attack July 22 in the form of DOJ lawyers who will argue before district Judge Susan R. Bolton that she should "declare invalid and preliminarily and permanently enjoin the enforcement of SB 1070," in the language of the lawsuit United States vs. Arizona, filed July 6.

Bolton heard similar arguments on July 15 from Phoenix attorney Stephen Montoya in one of the other lawsuits in play. Montoya, representing a Phoenix cop, claimed that the state law is preempted by federal law, and therefore violates the Supremacy Clause of the U.S. Constitution.

That clause makes the Constitution and federal law "the supreme law of the land." Furthermore, the Constitution explicitly gives Congress the power to "establish an uniform rule of naturalization," which it has in the form of the Immigration and Nationality Act.

In one of his rebuttals to Montoya at the July 15 hearing, Brewer's legal counsel, the $450-per-hour Snell & Wilmer lawyer John Bouma, claimed that the state law simply mirrors federal law, and that Arizona state law and federal immigration law have "identical purposes."

But the federal government isn't buying that argument, and neither is University of Arizona law professor Jack Chin.

"West Side Story is very similar to Romeo and Juliet," he told me recently. "But they're not the same. And SB 1070 and federal immigration law are not the same."

Indeed, where the federal government's immigration laws are complex and often flexible, depending on the history of the individual alien, SB 1070 is a one-size-fits-all approach. You know, like a pair of handcuffs.

"SB 1070 has a singular response to every undocumented person," said Chin, "which is criminal prosecution. But that's not federal policy."

Indeed, the DOJ complaint against Arizona explains this in detail over 25 tightly worded pages. The filing points out that SB 1070, as is stated in the very beginning of the law's language, pursues one goal alone: "attrition through enforcement." And it ignores numerous other goals that the U.S. Congress has set for immigration policy.

The government's complaint insists that SB 1070 will "conflict with longstanding federal law governing the registration, smuggling, and employment of aliens." It also disregards humanitarian concerns the government has for aliens who have "a well-founded fear of persecution" or who have been victims of natural disasters.

Moreover, it will interfere with "vital foreign policy and national security interests" by "disrupting the United States' relationship with Mexico and other countries."

One pertinent example: SB 1070 makes it a crime for a lawfully present alien not to carry with him or her an alien-registration document. That person, picked up by local law enforcement, would likely be taken directly to jail.

U.S. code has a similar provision, but the difference, as the complaint takes pains to explicate, is that the federal government doesn't arrest or prosecute aliens whose applications for asylum or some other humanitarian waiver are pending.

And as that alien's application is pending, "an alien may not have evidence of registration even though the federal government is aware of the alien's presence, has decided against removing the alien, and certainly has no interest in prosecuting the alien for a crime."

How will beat cops know all this? They won't. And the individual could be collared.

Larger, still, is the fact that SB 1070 effectively criminalizes unlawful presence, when Congress has "affirmatively decided that unlawful presence — standing alone — should not subject an alien to criminal penalties and incarceration," even though it makes the alien subject to civil proceedings for removal.

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Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons