Judge doubts constitutionality of a portion of Arizona’s immigration law

Reporting from Phoenix —  A federal judge on Thursday expressed skepticism about the constitutionality of a key part of Arizona’s controversial immigration law, but did not say whether she would prevent the measure from taking effect next week.

U.S. District Judge Susan Bolton said during a hearing that the provision that makes it a state crime to lack immigration documents apparently conflicts with a Supreme Court ruling that says states cannot create their own immigration registration systems.

John Bouma, a lawyer representing Arizona Gov. Jan Brewer in the seven lawsuits seeking to block implementation of the measure, tried to convince Bolton otherwise. Then he gave up.

“I didn’t have the feeling I persuaded you last week either,” he said, referring to similar arguments on another lawsuit.

Bolton did not issue a ruling or indicate when she would decide whether to issue an injunction to stop the main parts of the multifaceted law from taking effect July 29. Both sides agree that some technical parts of SB 1070 are constitutional, and Bolton said she would not strike those.

The judge honed in on one sentence in the bill that requires everyone who is arrested to have their immigration status checked with the federal government before release. She questioned whether this would apply to arrests for minor, nonviolent misdemeanors that usually do not require jail time.

She also sharply questioned another part of the law that allows police to arrest anyone they believe has committed a crime that would make them removable from the country. Bolton said that such a complex determination is usually made by an immigration judge.

Still, Bolton seemed sympathetic to other parts of the law, including one that makes harboring or transporting an illegal immigrant a state crime. She noted that Phoenix is a hub of human trafficking. “Isn’t it a public safety and welfare issue?” she asked.

Thursday’s hearing involved the two biggest challenges to the measure — one from a coalition of civil rights groups, the other from the Obama administration. Hundreds of protesters opposing the law marched outside the federal courthouse here.

Brewer signed SB 1070 into law April 23, saying Arizona’s security was threatened by an influx of illegal immigrants from Mexico. Among its many provisions, the law requires police to determine the status of people they lawfully stop and also suspect are in the country illegally.

Numerous civil rights groups sued, as did the Obama administration, arguing that the measure improperly tries to regulate immigration, which is a federal responsibility. The law’s defenders contend it merely mirrors federal laws.

In four hours of hearings, civil rights lawyers and federal attorneys denied that SB 1070 parallels federal law.

“The ultimate authority for enforcing [immigration laws] vests in the United States,” said Edwin Kneedler, the deputy solicitor general. “The framers were very concerned that one member of the union could embroil the nation in a controversy.”

That, he said, is what has happened with SB 1070. The law led to the cancellation of a conference between U.S. and Mexican governors and to threats from the Mexican government to withdraw cooperation on trying to crack down on border crime.

Bolton told Kneedler that he didn’t need to bother talking about why the federal government viewed as unconstitutional the provision on not having documents. But she sharply questioned his contention that the state cannot tell its officers they must determine the immigration status of people they stop — which is normally done with a call to Immigrations and Customs Enforcement.

Kneedler warned that if every state in the country adopted such a measure, it would create “a huge burden” on the federal agency.

Bouma said the new law merely directs local officers to help the federal government identify illegal immigrants. He contended that the Obama administration doesn’t want to enforce much of the existing federal immigration law.

“I guess we have some explanation of why we have so many [smugglers] and aliens unlawfully here,” Bouma said. “The federal government doesn’t want them prosecuted and doesn’t think the state should.”

Government statistics show that the Obama administration has deported more illegal immigrants annually than the George W. Bush administration.

Arizona is the favorite crossing point for illegal entrants from Mexico, and even though the numbers have dropped off during the recession, fears of violence from Mexican drug traffickers persist. Bouma noted a sign the federal Bureau of Land Management recently posted in the desert 30 miles south of Phoenix:

“Danger — Public Warning. Travel Not Recommended. Active Drug and Human Smuggling Area.”

Bolton said she had seen pictures of the sign, heavily publicized by Brewer, and that it was “awful.”

Brewer watched the last two hours of arguments, involving the Obama administration case, in the courtroom. Afterward, she gave a brief statement in which she praised Bolton’s questions.

“I’m confident Arizona will prevail,” Brewer said.

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