Immigration and
Arizona’s SB 1070
by Robert Ramirez
The Goals of SB 1070
• Create Criminal Offenses for illegal aliens trespassing
in the Arizona
• Stop the Employment of illegal aliens
• Stop the transporting, harboring or concealing of
illegal aliens
What does SB 1070 Do
• Requires reasonable attempts by law enforcement to
determine a person immigration status, if reasonable
suspicion exists that the person is an illegal alien
• Prohibit State or local entities from interfering or not
enforcing the law and creates a private cause of action if
said entity interferes with the law
• Trespassing by illegal aliens – makes the presence of a
person in Arizona a crime (trespass) if that person is not
carrying alien registration or has willfully filed to register
(the statue does not apply to a person who maintains
authorization from the federal government to remain in the
US)
What Does SB 1070 Do
• Makes it an offense to pick up undocumented workers
/ as well as an offence for an illegal alien to get in said
vehicle
• Makes it a crime to transport an illegal alien into the
state or induce an alien into the state
• Allows for the investigation of employers relating to
the hire of illegal aliens
• Contains a severability clause
Who is against it?
• The National Day Laborer Organizing Network – “This is the most racist bill
that we’ve seen in a generation”
• Center for Constitutional Rights
• Homeland Secretary Janet Napolitano (form Arizona Governor and signer of
a previous Arizona Immigration Bill)
• Mr. Obama – “undermines basic notions of fairness”
• Congresswoman Eleanor Holmes Norton – “is dangerously unconstitutional
in recapturing long discredited discriminatory laws ..”
• Eric Holder – US AG
• The Mexican Embassy
• Even some Republicans -
Other Arizona
Immigration law
• 2005 Law makes human smuggling illegal
• 2007 - Janet Napolitano, then Governor of Arizona,
signs a law that makes hiring illegal aliens a state crime
– Legal Arizona Workers Act
• If an employer knowingly employs unauthorized workers
the employer would be subject to probation and
suspension of their business licenses
• Considered the most aggressive approaches to regulating
immigration of its time
Other State and Local
immigration law
• Other States with Immigration Laws
• Arkansas, Colorado, Florida, Iowa, Louisiana,
Massachusetts, Mississippi, Missouri, Nevada, New
Hampshire, Oregon, South Carolina, Tennessee, Texas,
Virginia, West Virginia
• Local Governments with Immigration Laws
• Hazleton, Pennsylvania / Valley Park, Missouri / City of
Farmers Branch
Immigration in the
Constitution / Federal Law
• The Constitution gives Congress the power over
naturalization
• The Constitution specifies things that only Congress
can do:
• Enter into Treaties; lay any duties …
• Article IV. Section 4 – shall protect from invasion
• Immigration has been a function of both federal and
state law: e.g. 8 U.S.C. 1421
Federal immigration
law
• The first was signed into law in 1865
• The Immigration reform and Control Act of 1986
• Illegal to employee those not authorized to work in the
US
• The provisions of this section preempt any State or local
law imposing civil or criminal sanctions (other than
through licensing and similar laws) upon those who
employ … unauthorized aliens
• E-Verify for Employers (1996)
The Doctrine of
Federal Pre-Emption
• The Supremacy Clause - Federal Law is supreme,
hence if the law of a state directly conflicts with federal
law, federal law prevails or preempts state law
• However, Federal Courts have ruled that preemption
can apply even when federal and state law have a
common purpose
• The intent of Congress is the “ultimate touchstone in
every preemption case”
• “Federal Courts should be reluctant to infer preemption”
Preemption (Cont.)
• For federal law to preempt state law it must have a
direct and substantial effect on the scheme that
Congress has set out
• Just because Congress has established a detailed
statutory federal scheme – does not necessarily require
preemption of that area of law by the federal
government.
• But, Federal Courts have ruled that even without
express preemption or significant conflict a state law
may still be preempted
How have other
laws faired?
• Arizona 2007 Law – Judge Neil Wake upheld
Arizona’s 2007 law and sustained the state’s ability to
prohibit business from hiring undocumented workers
• Valley Park – Judge E. Richard Webber decided that
not only did federal law not preempt Valley Park’s law,
but that “to the contrary, federal law specifically
permits such licensing laws”
How have Other
Laws Faired? (cont.)
• Farmer’s Branch – Challenged and on May 21, 2007
Judge Sam A. Lindsay granted a temporary restraining
order enjoining the city form enforcing the ordinance
and later issued a permanent restraining order
• Hazleton’s Immigration Relief Act – Challenged July
2007 and struck down by the US District Court for
Middle District of Pennsylvania – the Court ruled that
the Hazleton law was preempted by federal law
Side Bar
Is there a Liberal slant in the Judicial
System?
• Legal Education in the area of Constitutional Law
• Topics from Constitutional Law at a “conservative” school
• Constitutional Law – University Case book
• State Regulations and the Dormant Commerce Clause
• The Problem of State Action
• The Revival of Substantive Due Process for ... Sexuality
• Constitutional Law – Coauthored by John Attanasio (Dean
SMU School of Law)
• Childbearing Decisions, Family Relationships, Homosexuality, the
Right to Die.
• Equal Protection for Illegal Aliens
• Why does this matter?
How Will the Law Be
Attacked?
• Preemption
• Discrimination / Profiling
How can Arizona
Defend SB 1070
• Dublino – The Supreme Court explained that a
detailed statutory scheme did not necessarily
demonstrate preemptive intent
• De Canas (1978) – state laws that are fashioned to
remedy local problems can withstand a preemption
challenge
• The distinction between immigrants and immigration
• The State’s Police Powers – States’ Rights
Solutions
• Election of Conservative Law Makers on the Federal
Level that will address the problem of illegal
immigration
• Election of a Conservative President that will address
Illegal Immigration
• The passing of immigration reform that makes it clear
that the federal law is not intended to preempt state
action on the matter, i.e. creating stiffer penalties for
employers or increased punishments for illegal aliens
by a state is expressly permitted