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The Daily Wildcat

The Daily Wildcat


A question of legality

Lisa Beth Earle/Arizona Summer Wildcat

UA law professors broke down Arizona Senate Bill 1070 into simpler terms and examined whether or not the law is invalidated by federal law in a recently released Preliminary Comment Draft.

On July 22, U.S. District Judge Susan Bolton will hear the federal government’s lawsuit against Arizona’s new immigration law, SB 1070.

UA law professors Marc Miller and Gabriel Chin and political science professor and executive director of the International Studies Association, Thomas J. Volgy, provided insight into the upcoming legal hearing.

All three experts interviewed said immigration enforcement is first and foremost a federal issue.

“”Immigration issues are constitutionally federal matters; they do not belong to the state. If states could make immigration law, we wouldn’t have a federal government,”” Volgy said.

According to Miller and Chin, who co-authored the draft, there is little doubt that many parts of the statute are constitutional.

Racial profiling, according to Chin, is not illegal when law enforcement officers base their decision to perform a stop on other factors as well.

“”In a situation where there is probable cause, the fact (that) the stop was also based on race is not grounds for it to be thrown out,”” Chin said.

A key issue is whether SB 1070 is preempted by federal law, Miller said. While the federal government may decide to rule against several provisions in SB 1070, it does not mean the entirety of the law will be thrown out.

“”One of the central themes in the very long history of Supreme Court decisions is that immigration policy vests in the federal government,”” Miller said. “”The defense of the nation and foreign affairs and commerce with other nations also vests in the federal government. These are clear federal powers based on explicit text in the federal Constitution.””

Some proponents of SB 1070 argue that creating state immigration policies that mirror federal laws is not usurping federal authority.

However, the authors of the draft claim that SB 1070 would interfere with federal policy if the state imprisoned an immigration violator when the federal government would have acted otherwise, or when a state law could damage diplomatic relations between the United States and a foreign country.

The draft states there is a material difference between states making arrests, and states arresting, charging, prosecuting, convicting and incarcerating.

If SB 1070 is valid, it must be due to the fact that the rise of federal immigration law somehow increased state authority on the subject, according to the draft.

The draft refers to several U.S. Supreme Court cases where the justices ruled against states creating their own immigration policies.

In Chy Lung v. Freeman, the Supreme Court declared a statute designed to keep prostitutes from immigrating to California unconstitutional. The court’s reasoning was that state policies might cause international tension.

In Hines v. Davidowitz, the Supreme Court ruled against a Pennsylvania alien registration law that duplicated federal law in some aspects. It involved many of the same federal laws that Arizona has borrowed in its current legislation, primarily parts of the Alien Registration Act of 1940.

The Supreme Court’s decision states:

“”(W)here the federal government … has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistent with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulation.””

Volgy said it is hard to tell what the international implications of SB 1070 will be.

“”Some people associate Arizona with the United States and some people can differentiate between what a state does and what the federal government does on behalf of all Americans,”” Volgy said. “”Some people get really confused about the separation of powers and the extent of decentralization in the U.S. government, and so it really varies a lot from place to place.””

Miller said the court should take international relations into consideration in regards to the ruling.

“”The position that Mexico and other countries have taken in explaining their concern with SB 1070 should inform the court as part of its determination, and was in fact an explicit part of the government’s brief,”” Miller said.

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