Defeating SB 1070 In Court: The Next Steps

By Julianne Hing Apr 27, 2010

Legal challenges to Arizona’s SB 1070 are coming from all sides. Both the ACLU and MALDEF are planning legal action against Arizona’s SB 1070, the law that makes it a crime to be an undocumented immigrant in the state and allows state law enforcement to detain anyone they believe might be undocumented. Phoenix mayor Phil Gordon announced on Friday that his city would bring a lawsuit against SB 1070 should it become law; he’s being joined today by Sara Presler, the mayor of Flagstaff, whose city is exploring its legal options as well. Today the Washington Post reported that Attorney General Eric Holder announced the possibility of a lawsuit from the Department of Justice. Both the ACLU and MALDEF declined to comment on their plans, but we spoke with Jennifer Chacón, a law professor at the University of California, Irvine, to suss out the next steps in overturning this law. — [update 04/29/10 12PM EST]: The National Immigration Law Clinic is also part of the coalition of legal groups fighting SB 1070. — What will happen immediately: SB 1070 is set to go into effect in 90 days, but Chacón suspects constitutional challenges to the law will be brought much sooner than that. Like with California’s Prop 187 and other unconstitutional anti-immigrant laws, the first step will be to file a preliminary injunction in state or federal court that will put a temporary hold on the law. But Chacón says that while civil rights groups seek an injunction, they will also be coordinating a longer term strategy behind the scenes. "They have to proceed on the assumption that they will lose the injunction," says Chacón. "They will be developing strategies to cope with the law if it goes into effect." And they’ll be formulating a strategy to overturn the bill permanently. Chacón pointed to Prop 187, the voter-passed bill in California that would have denied health and social services to undocumented immigrants and would have barred undocumented children from attending public school. That bill was eventually overturned permanently, but it took five full years. How Arizona might defend itself against legal attacks: Chacón says there are some warning signs that SB 1070 might stand in court. She pointed to the Legal Arizona Workers Act that was enacted in 2006 and went into effect in 2007. The law instituted stricter penalties against workers who used fake Social Security numbers to get jobs and instituted employer sanctions, too. When it was challenged in court, Chacón says the Ninth Circuit Court of Appeals upheld LAWA because it did not overstep state boundaries, it merely complemented federal law that was already in place. Because several of SB 1070’s provisions merely reiterate pre-existing immigration law, such as the directive to refer people to federal agents once they’re arrested, Chacón thinks Arizona could again defend itself by claiming it is not regulating immigration more stringently than the federal government, just reiterating and complementing already existing law. What happens if SB 1070 is implemented: Chacón foresees a couple ways that SB 1070 will be challenged if the injunction fails and it eventually becomes law. If people are pulled over, arrested, and prosecuted on the part of SB 1070 that charges undocumented immigrants with "trespassing" into the state, Chacón expects that a person could defend themselves by saying that SB 1070 is unconstitutional because it exceeds the state’s own power to enforce immigration laws. Traditionally, only the federal government has the right to enforce and write immigration law. This argument, which is called "pre-emption" among lawyers, has been used to overturn anti-immigrant legislation in places like Hazleton, Pennsylvania, and Farmers Branch, Texas, that tried to bar undocumented immigrants from renting property in those towns. Chacón also thinks people could defend themselves against the law by claiming a Fourth Amendment violation of their rights by saying that they were racially profiled, and therefore detained by police unlawfully. "But the worst problem is that in a lot of these cases, there aren’t going to be criminal prosecutions," said Chacón. Chacón suspects that because in criminal cases, Arizona has to provide legal representation to people, an expensive burden, the state will likely just funnel people directly to ICE, where people do not have the right to counsel. "In immigration court, there are a lot more unrepresented people, and it’s harder for people to mount complex arguments," Chacón said. Indeed, the vast majority of people navigating the immigration system do so on their own and without any legal representation. What happens for people who end up in immigration court because of SB 1070: Chacón says that people have won cases in immigration court when they have been able to show that police pulled them over because of their race, which is an illegal practice. Unfortunately, more criteria is required in immigration court to prove someone was racially profiled and their Fourth Amendment rights were violated. What the legal challenge to SB 1070 will mean for the immigrant rights movement in the long run: According to Chacón, the legal strategy that will be used to overturn SB 1070 will not be the same strategy that is going to convince SB 1070 proponents that a law like that isn’t necessary, or even just. "The pre-emption argument doesn’t explain to people who favor this law why this is a good outcome," she said. "The whole reason they passed it is because they feel like the feds are not doing what they’re supposed to do." "The other piece of this, and let’s not kid around, is racism and xenophobia," she added. "And no matter what happens in court, that core problem won’t be addressed [by this legal challenge]."