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By Pratheepan Gulasekaram, Assistant Professor, Santa Clara University School of Law. Professor Gulasekaram teaches Constitutional Law, Immigration, and Citizenship.

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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.

Yet, despite the federal government's prevailing on key provisions of the law, it is also worth noting a few aspects of the decisions that render it an incomplete victory for immigrants and immigrant-advocates. First, Judge Bolton expressly noted that she was not enjoining sections 1 or 2 of SB 1070. Section 1 clarifies that the law's intent is to "make attrition through enforcement" a state-wide public policy, and to "discourage and deter" the unlawful entry, presence, and economic activity of unlawfully present persons. In preserving this section, Judge Bolton stated "the Court cannot enjoin a purpose; the Arizona Legislature is free to express its viewpoint and intention as it wishes." By leaving intact the law's expressly severe intent, the court saved a symbolically meaningful portion of the law, implicitly suggesting that immigration deterrence can be a legitimate pursuit of state lawmaking. Section 2 effectively prevents localities within Arizona from enacting "sanctuary" type ordinances. In declining to enjoin section 2, the court allowed the state to suppress dissent from localities within Arizona that might employ sanctuary-type ordinances to signal their acceptance of undocumented immigrants. Together, these surviving sections serve important expressive functions. Despite suffering a critical setback on several operative sections of the law, Arizona public officials likely have already been successful in creating an inhospitable atmosphere for immigrants, whether lawfully present or not.

Second, the opinion is also notable for what it does not include - namely, it contains no mention of the law's potential infirmities under the constitution's equal protection and due process guarantees. The avoidance of these constitutional standards, and sole reliance on federalism principles, probably helps insulate Judge Bolton's decision from reversal on appeal. However, in the long run, for immigrants and immigrant advocates, I worry about continued use of a structural norm to evaluate the problems caused by the unequal treatment of a class of persons. While federal power and preemption rationales, in this instance, led to the invalidation of several odious portions of a sub-federal law, the opinion's singular reliance on them further entrenches federal immigration regulation as a subject beyond the scope of searching judicial scrutiny. Perhaps the federal government will not be as restrictive or as punitive towards undocumented persons as Arizona's current legislature and executive officers are. But, this uncertainty is part of the long-term cost of court decisions, like the one at hand, that mask the important ways in which immigration regulation can create second-class forms of membership in American society and circumvent personhood standards that would apply to other politically vulnerable and unpopular groups singled out by law.