Injunction Against Arizona's New Immigration Law Has Limited Effect, Says Law Prof

July 31, 2010 - PRLog -- The order issued by Judge Susan Bolton preventing several sections of Arizona's new illegal alien law from going into effect is apparently having only a limited impact, and her decision seemingly provides some support for those who want to crack down on illegal aliens, says public interest law professor John Banzhaf, an expert in preemption law who predicted shortly after the opinion was made public that it had loopholes and would still permit law enforcement officials to take effective action. http://www.prlog.org/10822936-injunction-of-az-immigration-law-may-have-loophole-can-officers-still-take-action.html

The judge's injunction prohibits enforcement of that portion of the law which requires law enforcement offices to inquire under certain circumstances about a person's immigration status, but it does not by its terms prohibit the officers from making such inquiries and from acting on the results.  Thus those who do so on their own initiative, or because they were requested to do so by superior officers like Maricopa Country Sheriff Joe Arpaio, apparently are free to continue this course of conduct, as Arpaio seemingly is demonstrating, says Banzhaf.

Indeed, Arapio is apparently planning to continue his sweeps, arguing that the judge's ruling does not stop him because there are other laws that allow the transferring of undocumented workers from state jails to federal immigration custody.

Republican state Sen. Russell Pearce, who sponsored the legislation, was happy that the judge upheld the authority of officers to check immigration status.  "We put teeth in this bill," he said. "Those teeth are still there. . . . As of Thursday, the handcuffs come off of law enforcement."

Meanwhile, the Phoenix and Tucson police departments reportedly have directed their officers to hold anyone arrested until the federal government verifies their immigration status, relying upon a portion of the law not impacted by the injunction which required that "any person who is arrested shall have the person's immigration status determined before the person is released.

Judge Bolton also left undisturbed portions of the new law which prohibit any Arizona officials, agencies and political subdivisions from limiting enforcement of federal immigration law, and another section which requires officials of the state to work with federal law enforcement officials regarding illegal aliens.

These two portions could seriously undermine the efforts by several Arizona cities -- apparently including Phoenix, Mesa, Chandler, and Tucson -- to remain "sanctuary cities" which largely shield illegal aliens from adverse legal consequences, and even provide them with governmental benefits to which some argue they may not be entitled.

Indeed, if these and perhaps other cities seek to remain sanctuaries, litigious residents can sue any state official, agency or political subdivision for not enforcing federal immigration laws to the full extent permitted.   This provision gives citizens unique powers not only to see that existing laws are enforced, but also to use subpoenas and other powerful tools of pre-trial discovery to unearth previously secret memos, emails, and other evidence related to non-enforcement which might be very embarrassing if not actually illegal, says Banzhaf.

Other important sections of the new law left in effect by Judge Bolton include:
* creating a crime for stopping a motor vehicle to pick up day laborers, and for day laborers to get into the motor vehicle if it impedes the normal movement of traffic
• amending the crime of knowingly employing illegal aliens
•: amending the requirements for checking employment eligibility
* making transporting or harboring an illegal alien an additional offense for a person who has committed another crime
* providing for impounding a vehicle used to transport or harbor aliens in Arizona illegally

PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
FAMRI Dr. William Cahan Distinguished Professor,
FELLOW, World Technology Network
2013 H Street, NW
Washington, DC 20006, USA
(202) 659-4310 // (703) 527-8418
http://banzhaf.net/