By Pratheepan Gulasekaram, Assistant Professor, Santa Clara University School of Law. Professor Gulasekaram teaches Constitutional Law, Immigration, and Citizenship.
As most are aware by now, a federal district court preliminarily enjoined key parts of Arizona's controversial anti-illegal immigrant law, SB 1070, ruling for the federal government in its suit against the State of Arizona. The law's opponents heralded the decision as a carefully crafted one that deals a blow to anti-immigrant forces. Here, I will briefly explain that while I believe the decision stands on firm constitutional ground, and immigrants and immigrant-advocates are justified in celebrating this preliminary outcome, it is not a complete victory.
As an initial matter, I think Judge Bolton's opinion is constitutionally sound. It does not rest on new-fangled legal theories or the acceptance of previously unrecognized suspect classes under the constitution. Instead, the decision analyzes the Arizona law under well-worn principles of federalism. It relies on decades-old Supreme Court precedent like Hines v. Davidowitz and DeCanas v. Bica, both cases addressing state lawmaking directed at non-citizens, with the former striking down an alien registration requirement similar in spirit to parts of the Arizona law. Applying this federalism framework to SB 1070, the court correctly predicted that Arizona's law is highly likely to impermissibly affect citizens and legal residents of the United States even if they are not its target, require the redirection of some federal resources, and create penalties and liabilities for undocumented persons that are not contemplated by federal law.
In addition, from the perspective of someone who teaches this area of law, I fully endorse the court's conclusion that the section of SB 1070 allowing police officers to conduct a warrant-less arrest of a person, when the officer has probable cause to believe that person has committed an offense that makes that him or her removable, is well-beyond the bailiwick of local law enforcement. Such a provision might make sense if determinations of legal status and deportability were a simple matter. However, as Judge Bolton accurately noted, determinations of removability require the careful analysis of several complex and interrelated portions of the immigration code, and are dedicated by federal law to the expertise of immigration judges and federal appellate courts. If such determinations were as lucid as the Arizona law would suggest, immigration professors could save several classes each semester attempting to decipher imprecise terms such as "crimes of moral turpitude" and "aggravated felonies," along with the various exceptions and waiver possibilities that accompany those designations.