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United States v. Arizona
Order on Motion for Injunctive Relief

For most people not in the courtroom “United States v. Arizona” represents a political grapple, a wrestling match of policies that is difficult to grasp in full.  It is a casual debate around the water cooler and a protested issue on the streets of our cities.  From coast to coast, everybody has an opinion on S.B. 1070, and one person with an opinion is US District Court Judge Susan R. Bolton.

What most people don’t realize is that Judge Bolton is simply putting the legislation on hold. This case hasn’t been resolved in either direction. To be specific, the United States began litigation against the State of Arizona with two legal documents. The first is a Complaint on Constitutional grounds, which has not been adjudicated. The second was a Motion to enjoin; to stop the law until its constitutionality is in fact resolved.

Judge Bolton’s decision, her Order on Motion for Injunctive Relief simply acts to restrain the enforcement of certain partitions of this legislation. It is not a final Judgment, it is not a strike against the law, its simply a delay. For this reason, it is my opinion that a cementing United States Supreme Court decision is unlikely at this point, since there is nothing to overturn except a preventative measure which is generally upheld until a final determination is made.

What is the judge’s responsibility in reviewing this Motion?

Not many people outside of legal circles are familiar with the balancing point used to review a motion like this.  We’ve all heard of “beyond a reasonable doubt” and “preponderance of evidence” but in the review at bar, the standard is more complex, and this standard actually varies based on venue but follows the same general guidelines.  Specific to Federal cases, the judge must review each provision using these four measurements;

1. the likelihood of the Plaintiff’s eventual success,
2. the likelihood of the Plaintiff to suffer irreparable harm if the Motion is not approved,
3. the balance of the equities in play, and
4. the public interest in the injunction.

Winter v. Natural Res. Defense Council, Inc. 129 S. Ct. 365, 374 (2008), Supreme Court’s most recent articulation of the standard of review for Injunctive Relief in Federal Court.

The burden is on the moving party, in this case the United States, to meet this challenge for each element of the law which they feel is unconstitutional. Notice that “and” is placed between 3 and 4, linking each step, requiring the US to pass each test, for each challenged piece of SB 1070.

Procedural Note -

To rewind for a moment, by the time this case makes its way to Judge Bolton’s desk, the law has already been through the legislative process of the State of Arizona.  Through committees, debates, votes, S.B. 1070 was drafted in response to “rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns.”  United States v. Arizona, Order on Motion, P.1, Lines 19-21. The legislation is not one act, its a severable set of law designed to create new laws and also to amend established laws.

Many people feel a bit of animosity against the government for their action in this case, but it is worth noting that the legislation is not challenged as if to say that the United States is in favor of rampant illegal immigration, escalating drug and human trafficking crimes, and serious safety concerns, but instead whether the propsed response is constitutional or illegal. This exercise is simply a constitutional review.

Constitutionality

The United States asserts that that the Supremacy Clause of the United States Constitution provides the exclusive authority to regulate federal law, such as Immigration. When state agencies are involved in the administration of Immigration laws, it is not from their own state legislative authority, it is with the cooperation of the federal government.  8 USC s. 1357 (g)(1-9).

However, the United States Supreme Court qualifies the Supremacy Clause argument in De Canas v. Bica, that not every single piece of state legislation having to do with aliens is unenforceable due to the aforementioned Supremacy Clause.  De Canas v. Bica, 424 U.S. 351.  354-355 (1976).

To resolve the grey area bound by these two conflicting statements, the laws of our land require an actual conflict of laws to justify a pre-emptive legal tactic, such as injunctive relief.

For injunctive relief to be proper, to repeat, there must be a conflict of federal and state power, and then the aforementioned four part test must be administered. Judge Bolton reviewed each provision of the law which was challenged by the United States.

Plaintiff’s likelihood of success

Judge Bolton immediately separated those provisions which she felt met, and failed to meet this initial qualification.
As a point of general clarification, many parts of this law were not even challenged by the United States. With regard to those sections which were challenged but failed to meet this first burden of likelihood of success, two were discarded;

Portion of Section 5 which creates a separate crime for a person in violations of a criminal offense to transport or harbor an unlawfully present alien or encourage or induce an unlawfully present alien to come to or live in Arizona.

Section 10 which amends the provisions for the removal or impoundment of a vehicle to permit impoundment of vehicles used in the transporting or harboring of unlawfully present aliens.

With regard to these portions of the law, they were not enjoined by Judge Bolton.

On the other hand, four sections passed the likelihood of success test in the face of a constitutional challenge;

Portion of Section 2 which requires that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person.

Section 3 which creates a crime for the failure to apply for or carry alien registration papers.

Portion of Section 5 which creates a crime for an unauthorized alien to solicit, apply for, or perform work.

Section 6 which authorizes the warrantless arrest of a person where there is probably cause to believe the person has committed a public offense that makes the person removable from the United States.

Because these regulations are apparently at conflict with Federal Immigration regulatory laws, and because of the exclusive power of the Supremacy Clause, Judge Bolton feels that the US has a likelihood of success in their complaint, and these provisions satisfy the initial step in the Plaintiff’s burden of proof.

Likelihood of Irreparable Harm

It is worth noting that the Federal Circuit with jurisdiction over the State of Arizona’s Federal challenges is the Ninth Circuit – so where there is no direct precedent from the United States Supreme Court, then Ninth Circuit case law will bind the decisions of the lower District Court Judges, in this case Judge Bolton.

“An alleged constitutional infringement will often alone constitute irreparable harm.” Monterey Mech. Co. v. Wilson, 125 F 3d 702, 715 (9th Cir. 1997).

This is so because there is no financial way to fix any harm which is done, and the articulated harm is that the federal government’s ability to enforce its policies and achieve its objectives will be undermined by the state’s enforcement of statutes that interfere with federal law, even if the Court were to conclude that the state statutes have substantially the same goals as federal law. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 379-80 (2000).

Under this line of reasoning, every part of SB 1070 which has a substantial likelihood of success would also meet this portion of test as well.

The Balance of equities and the public interest

The first part of this portion of the review basically asks, what happens if this law is passed; who is harmed, who benefits? And then the other side is considered, what happens if this law is not passed; who is harmed, who benefits?

This is a common exercise which is similar to risk/benefit analysis in the business world but in legal terms is known as “balancing equities.” In this case, the public interest is considered as a stakeholder, as a group who could be harmed or who could benefit.

This is where most people would submit their arguments on social policy, confusing public interest with media attention. In fact, Judge Bolton never has a chance to consider those arguments, because as a matter of jurisprudence, she is bound by the Ninth Circuit; “allowing a state to enforce a state law in violation of the Supremacy Clause is neither equitable nor in the public interest.” Cal. Pharmacists Ass’n v. Maxwell-Jolly. 563 F. 3d 847, 852-53 (9th Circuit, 2009).

While Bolton is sympathetic to the intention of the law, she concludes that preserving the status quo through a preliminary injunction is less harmful than allowing state laws that are likely preempted by federal law to be enforced. Id, at 852-853.

Conclusion

While the four part test required to justify injunctive relief seems to use separate boundaries and would yield separate arguments, when the test is applied to Consitutional challenges in the 9th circuit, there is a domino effect that follows the Supremacy Clause; if there is a conflict between state and federal law, there is a likelihood that the US will prevail, that as a matter of established law such an infringment is per definition irreparable harm, inequitable, and beyond the public interest.

Remember that this Motion was to enjoin, to stop the bill from taking effect until their Complaint against the State of Arizona is adjudicated, and the US will pursue that judgment in the same courtroom, before the same judge, who already gave both parties a preview of her interpretation of the law. So while the law has not been executed, it looks like it might have been given a death sentence.