Here is the complete, 36-page opinion and order by District Court Judge Susan Bolton striking down and blocking key portions of Arizona’s controversial immigration law. The court invalidated the following provisions of the Arizona law, S.B. 1070, stating they were preempted by federal law.
A.R.S. § 11-1051(B): requiring 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 of S.B. 1070
A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien
Portion of Section 5 of S.B. 1070
A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply
for, or perform work
Section 6 of S.B. 1070
A.R.S. § 13-3883(A)(5): authorizing the warrantless arrest of a person where there
is probable cause to believe the person has committed a
public offense that makes the person removable from the
The court further found the federal government would suffer irreparable harm if the above provisions were allowed to go into effect, and therefore issued an injunction prohibiting them from taking effect and being enforced.
My read of the opinion is that the second half of A.R.S. § 11-1051(B), could be salvaged with a re-draft. The Arizona legislature’s sloppy draftsmanship required law enforcement to hold every person arrested until their immigration status could be verified, regardless of whether there was any basis to believe they are in the country illegally.
Arizona tried to argue that the plain language didn’t really mean what it obviously said. The judge correctly required Arizona to state what they actually mean in the law, and ruled that requiring an immigration check on every person arrested would place an unreasonable burden on the federal government and would result in the unlawful detention of legal aliens and even citizens.
Arizona thus might be able to require law enforcement to detain arrestees if they have reasonable suspicion they are in the country illegally after an arrest on an unrelated offense. The court didn’t reach that issue because it wasn’t presented to her.
Judge Bolton based her reasoning entirely on the Constitution’s supremacy clause and the notion that Congress has pre-empted state regulation in the provisions struck down. The court rejected a commerce clause argument by the federal government, and did not rule on the racial profiling issue because it was not necessary.
Updated: July 28, 2010, 2:12 p.m. MST.