Immigration and Arizona’s SB 1070

1. Immigration and Arizona’s SB 1070 by Robert Ramirez

2. 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

3. 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)

4. 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

5. 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 -

6. 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

7. 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

8. 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

9. 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)

10. 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 pre-emption”

11. 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

12. 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”

13. 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

14. Side BarIs 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?

15. How Will the Law Be Attacked? • Preemption • Discrimination / Profiling

16. 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

17. 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