Legal Commentary

The Glaring And Dangerous Error In The AZ SB 1070 Decision

By Big Tent Democrat

At page 27 of the decision (PDF), Judge Bolton makes a grievous error that needs to be appealed. It leaves a huge loophole for mischief:

Section 5 of S.B. 1070 also creates A.R.S. § 13-2929, which makes it illegal for a person who is in violation of a criminal offense to: (1) transport or move or attempt to transport or move an alien in Arizona in furtherance of the alien’s unlawful presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or shield an alien from detection in Arizona; and (3) encourage or induce an alien to come to or live in Arizona. A.R.S. § 13-2929(A)(1)-(3). In order to violate A.R.S. § 13-2929(A), a person must also know or recklessly disregard the fact that the alien is unlawfully present in the United States.Id. The United States asserts that this provision is preempted as an impermissible regulation of immigration and that the provision violates the dormant Commerce Clause. (Pl.’s Mot. at 44- 46.)18

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a. Regulation of Immigration

The “[p]ower to regulate immigration is unquestionably exclusively a federal power.” De Canas, 424 U.S. at 354. The regulation of immigration is “essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.”Id. at 355. “[T]he fact that aliens are the subject of a state statute does not render it a regulation of immigration.”Id. The United States argues that “to the extent Section 5 is not a restriction on interstate movement, it is necessarily a restriction on unlawful entry into the United States.” (Pl.’s Mot. at 45.)

A.R.S. § 13-2929 does not attempt to regulate who should or should not be admitted into the United States, and it does not regulate the conditions under which legal entrants may remain in the United States. See De Canas, 424 U.S. at 355. Therefore, the Court concludes that the United States is not likely to succeed on its claim that A.R.S. § 13-2929 is an impermissible regulation of immigration.

This is absurd reasoning. This is an attempt by Arizona to unilaterally manage the enforcement of immigration laws in Arizona. Indeed, it is expressly such an attempt. As the Court acknowledges the law makes it illegal to "transport or move or attempt to transport or move an alien in Arizona in furtherance of the alien’s unlawful presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or shield an alien from detection in Arizona; and (3) encourage or induce an alien to come to or live in Arizona." This is inextricably intertwined with immigration enforcement Indeed, I would argue that this provision is the most egregiously encroaching on the federal scheme.

This part of the decision is indefensible. The federal government must seek an emergency appeal of this part of the ruling.

Speaking for me only

Full post as published by TalkLeft on July 28, 2010 (boomark / email).