Lawyers for the State of Arizona have filed a response to DOJ’s petition for a preliminary injunction yesterday.

In looking over the arguments raised by Arizona, there seem to be some compelling arguments on their side, particularly involving Sec.2 of SB1070, which requires local law enforcement to determine status of persons detained, who are reasonably suspicious of being in the country illegally.  There are also many bogus claims, specifically those regarding the rest of the sections in the act, and most specifically those regarding Sec. 3 (making it a crime to be in Arizona illegally).

The main argument in support of Sec. 2 is a reference to the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIA).  The IIRIA specifically states:

(a) IN GENERAL—Notwithstanding any other provision of Federal, State,

or local law, a Federal, State, or local government entity or official may not

prohibit, or in any way restrict, any government entity or official from

sending to, or receiving from, [ICE] information regarding the citizenship

or immigration status, lawful or unlawful, of any individual.

(b) ADDITIONAL AUTHORITY OF GOVERNMENT ENTITIES—

Notwithstanding any other provision of Federal, State, or local law, no

person or agency may prohibit, or in any way restrict, a Federal, State, or

local government entity from doing any of the following with respect to

information regarding the immigration status, lawful or unlawful, of any

individual:

(1) Sending such information to, or requesting or receiving such

information from [ICE].

(2) Maintaining such information.

(3) Exchanging such information with any other Federal, State, or

local government entity.

(c) OBLIGATION TO RESPOND TO INQUIRIES—[ICE] shall respond

to an inquiry by a Federal, State, or local government agency, seeking to

verify or ascertain the citizenship or immigration status of any individual

within the jurisdiction of the agency for any purpose authorized by law, by

providing the requested verification or status information.

This hits DOJ’s argument of SB 1070 adding extra burden on ICE in conflict of federal immigration policy pretty hard.  Looking specifically at IIRIA, it seems it was the direct intent of Congress to enable state and local law enforcement agencies to be able to check the status of aliens, unimpeded.  It seems Section 2 of SB 1070 has a valid claim of not being pre-empted.  I still think, however, that this section is wide open for an as-applied equal protection claim, since it has the potential to cause disparate impact and long detention times while attempting to check status.

The rest of the response involving Secs. 3-6 contain selective quoting of past cases, conflicting logic, and otherwise bogus claims.  Section 3 is particularly untenable from a pre-emption standpoint, since it is a clear attempt at the state level to regulate immigration by making it a crime to be in the state illegally.  Arizona’s claim that it is not pre-empted “[b]ecause the state and federal statutes have identical purposes” is clearly at odds with precedent.  Arizona’s response almost completely ignores Pennsylvania v. Nelson, which found a Pensylvania sedition law was pre-empted by a federal law (emphasis added):

Looking to all of them in the aggregate, the conclusion is inescapable that Congress has intended to occupy the field of sedition. Taken as a whole, they evince a congressional plan which makes it reasonable to determine that no room has been left for the States to supplement it. Therefore, a state sedition statute is superseded regardless of whether it purports to supplement the federal law.

Furthermore, a similar argument is used by Arizona to defend Sec. 4, involving penalties for smuggling of illegal immigrants.  The state argues that this law is not pre-empted because “[t]he only alleged conflict that plaintiff identifies is that the Arizona

statute is broader than the federal statute.”  This completely ignores Charleston & Western Carolina Ry. Co. v. Varnville Co., involving a state law for settling claims against interstate carriers:

When Congress has taken the particular subject matter in hand, coincidence is as ineffective as opposition, and a state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go.

Furthermore, Arizona’s response relies heavily on De Canas v. Bica, involving a California employer sanctions law, because it successfully evaded a claim of pre-emption involving illegal immigration.  The only problem is that the opinion goes to great lengths to ensure specificity to employer sanctions laws, which makes it difficult to draw from it so broadly.  To wit:

Hines v. Davidowitz, 312 U. S. 52 (1941), and Pennsylvania v. Nelson, 350 U. S. 497 (1956), upon which respondents rely, are fully consistent with this conclusion. Hines held that Pennsylvania’s Alien Registration Act of 1939 was pre-empted by the federal Alien Registration Act. Nelson held that the Pennsylvania Sedition Act was pre-empted by the federal Smith Act. Although both cases relied on the comprehensiveness of the federal regulatory schemes in finding pre-emptive intent, both federal statutes were in the specific field which the States were attempting to regulate, while here there is no indication that Congress intended to preclude state law in the area of employment regulation.

[...]

Moreover, in neither Hines nor Nelson was there affirmative evidence, as here, that Congress sanctioned concurrent state legislation on the subject covered by the challenged state law. Furthermore, to the extent those cases were based on the predominance of federal interest in the fields of immigration and foreign affairs, there would not appear to be a similar federal interest in a situation in which the state law is fashioned to remedy local problems, and operates only on local employers, and only with respect to individuals whom the Federal Government has already declared cannot work in this country. Finally, the Pennsylvania statutes in Hines and Nelson imposed burdens on aliens lawfully within the country that created conflicts with various federal laws.

Such a reliance on De Canas, even to go so far as to suggest that a “test” exists within the opinion to determine all immigration-related pre-emption challenges ignores the specificity of the ruling.

DOJ’s challenge to SB 1070 still appears to be well-founded, while challenges to Sec. 2 may be considerably weaker than to other sections of the law.  Since Sec. 3 involves potential imprisonment and is also the most likely to be overturned, the case for irreparable harm still seems legitimate.

A grant of a preliminary injunction still seems possible.

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