A lawsuit filed July 6 by the U.S. Justice Department against Arizona’s new immigration statute will likely prevail, at least in part, but its victory may come only at the appellate stage.
The first round of the legal battle will be a decision by an Arizona federal district judge about whether to prevent Arizona SB 1070 from becoming effective July 29. That judge’s decision is a “wild card,” according to Stephen Legomsky, JD, DPhil, immigration policy expert and professor of law at Washington University in St. Louis.
“It’s very hard to predict what the district court is going to do,” says Legomsky, the John S. Lehmann University Professor. “Its decision will be made by just one randomly selected judge, and that judge will be an Arizona resident who might come under intense personal pressure to defend his or her state’s law against federal intervention.’’
Regardless of the initial outcome, Legomsky predicts that the losing side is almost certain to appeal to the 9th Circuit Court of Appeals, which covers most of the western United States. There, a panel of at least three judges drawn from a broader region will decide the case.
“They will be more likely than a district judge sitting in Arizona to invalidate at least portions of the law,” Legomsky believes. “Then, of course, there is always the possibility of a definitive ruling by the Supreme Court.”
Law enforcement interrogation most likely portion to stand
Much of the outcry over the statute deals with a mandate for police officers to investigate the statuses of anyone they lawfully stop whenever they have a “reasonable suspicion” that the person is unlawfully present. The law does not say what will make a suspicion reasonable, and many fear that racial profiling will therefore become more widespread.
Other controversial provisions, however, make certain immigration-related conduct a state criminal offense. Legomsky predicts that at least the latter provisions will be struck down as illegal interferences with the exclusive federal power to set the nation’s immigration policies.
For example, the Arizona law makes it a state crime for an undocumented immigrant to be present in the state.
“While Congress has indeed made illegal entry a federal criminal offense,’’ Legomsky observes, “It has consciously chosen not to criminalize overstaying a visa; for visa overstayers, Congress has decided that deportation is a sufficient sanction. Thus, Arizona’s law is directly at odds with the federal immigration laws. Further, even for individuals who entered illegally, Congress had to balance a range of factors before settling on the proper level of punishment.”
“By increasing the penalty, Arizona has substituted its judgment for that of Congress. And for the past 100 years, the Supreme Court has consistently held that the regulation of immigration is exclusively a federal responsibility. Whether you feel that the existing penalties are too harsh, too weak, or just right, we can’t have 50 states and hundreds of cities and towns each passing their own immigration laws.”
Even so, Legomsky says it is likely other states will “go ahead and pass copycat immigration legislation before this case is ultimately resolved.”
No law is foolproof
Supporters of the Arizona law assert the statute is necessary because the federal government fails to adequately secure U.S. borders. But Legomsky points out that the Obama administration has committed massive new resources to border fences, border patrol personnel, and new technologies.
“No law is capable of 100 percent enforcement,” Legomsky says. “It’s easy to criticize the federal government for failing to stem illegal immigration, but the real question is how much in the way of taxpayer resources do supporters want the federal government to spend on immigration enforcement?”
Legomsky has chaired several nationwide committees, has testified before the U.S. Congress and has advised both Democratic and Republican administrations on immigration and refugee matters. His immigration law course book has been a required text at 172 law schools.
Editor's note: Legomsky is available for phone and e-mail interviews through at least August 20. Contact Nancy Fowler Larson at email@example.com until Jessica Martin returns September 7, 2010.