SB 1070 Hearings Suggest Portions of the Law Will Stand

The federal judge has indicated that if she does allow an injunction, it will be for certain sections and not the entire anti-immigrant law.

By Julianne Hing Jul 23, 2010

U.S. District Court Judge Susan Bolton adjourned yesterday’s back-to-back hearings on SB 1070, the "show me your papers" law, without issuing a ruling, but the Tucson Sentinel reports that Judge Bolton has indicated that if she does allow an injunction, it will be for certain sections and not the entire law.

Bolton said she considers SB 1070 a body of laws, some new and some that were updated versions of existing law. Among other measures, the law make it a state crime for immigrants who don’t have papers to be in Arizona.

As expected, testimony yesterday broke down into the nitty-gritty of the various provisions inside SB 1070.

According to, testimony focused on two portions of SB 1070: the first prohibits the creation of sanctuary cities–the term used for municipalities that promise not to report arrest data to the federal government so Immigration and Customs Enforcement can get involved. At that point, Judge Bolton asked the civil rights coalition groups that filed lawsuits against SB1070: "Why can’t Arizona be as inhospitable as they wish to people who have remained and entered the United States illegally? Who am I to stop the state of Arizona?"

Another point of debate centered around SB 1070’s language demanding that any person who’s arrested or even detained must have their immigration status checked. Judge Bolton wanted to know who this would apply to and said that based on conversations she’d had with local law enforcement officials, this could put a massive burden on local jails and police agencies.

Judge Bolton’s Phoenix courtroom was filled with dozens of attorneys and more than a 100 spectators. In the morning, they heard from an ACLU-led coalition of civil rights groups that want the law blocked while the courts determine whether the law is constitutional or not. That hearing was followed by another in the afternoon when the Department of Justice argued the same.

In both hearings, lawyers representing the state of Arizona defended SB 1070 against its critics, saying that fears that the law would enable racial profiling were "speculative premature." Gov. Jan Brewer, responsible for signing 1070 into law on April 23, sat in on the DOJ’s hearing.

Immigrant and civil rights groups have argued that the SB 1070 pre-empts federal law, that is, it oversteps its authority to create and enforce its own immigration laws. As Daisy Hernandez reported, the constitution does not explicitly mention "immigration," but its language around immigration laws is interpreted to mean that the federal government alone has the sole authority to create and enforce immigration laws. Immigrant rights groups have successfully struck down various local and state anti-immigrant laws using this argument, but there’s a chance this argument will only work for portions of SB 1070.

SB 1070 also makes it a state crime for a person to be caught without their immigration papers to verify their legal status. It is in itself a federal violation, but as a state law, SB 1070 creates a brand new class of immigrants, argued MALDEF’s Nina Perales.

Judge Bolton agreed that this section was vulnerable to a pre-emption argument, and the state of Arizona’s attorney, John Bouma, conceded that he knew he could lose this portion of the law on these grounds.

The portion of SB1070 that Judge Bolton took issue with centered on language that allowed police officers the power to commit a warrantless arrest of anyone they thought had committed a deportable offense, something that Bolton bristled at. reported that at this, Bolton asked: "How can a police officer make a determination that a person has committed a removable offense when that decision can only be made by a federal judge?"

SB 1070 is facing a total of seven legal challenges right now with the most prominent being the Justice Department’s.

According to the Tucson Sentinel, Judge Bolton questioned the pre-emption argument when the DOJ’s attorney, U.S. Deputy Solicitor Edwin S. Keedler, said that ICE and other federal immigration agencies would be inundated with calls and reports of undocumented immigrants who were low on the list of priorities of people to deport from the country.

Keedler said it’d be too much for the Department of Homeland Security to investigate every person Arizona pulled over and suspected was undocumented, to which Judge Bolton asked: "Can you really say that this is pre-emptive because you’re going to receive too many calls?"

Keedler told her that the problem was that state law enforcement officials would be overstepping their powers and telling federal officials what kinds of undocumented immigrants to pay attention to. Keedler argued that ICE has tiered priorities of the kinds of immigrants they want to kick out of the country, and SB 1070 would mess with those priorities. (Never mind the fact that the majority of people already detained and prosecuted for immigration violations under the Obama adminstration are exactly this type of immigrant—people with no prior criminal records whose only crime is being in the country without papers.)

Bolton will have to issue her decision before next Thursday, July 29, when the law is slated to go into effect. But whatever she decides will only be short term. Litigation over SB 1070 promises to be a long, drawn out affair that will travel through many courtrooms. It took 15 years to overturn California’s anti-immigrant Prop 187.

PHOTO: Sandra Day O’Connor Federal  U.S. Courthouse in Phoenix, Arizona. By  Eric Johnson