The result of the injunction granted today by the federal court in Arizona preventing the key provisions of S.B. 1070 from taking effect is not just the maintenance of the status quo.
At a legal level, it is true that nothing has changed. S.B. 1070 never took effect, so no law was lost.
At a more realistic level, everything has changed.
States have been left helpless to deal with the anarchy created by the failure of the federal government to enforce border security. Whereas yesterday it was unclear how far states (such as Rhode Island) could go, today states are powerless.
The inability of a state to implement a policy of checking the immigration status even of people already under arrest for some other crime is remarkable.
While I cannot blame the Judge for striking some provisions of S.B. 1070 (particularly those creating independent criminal sanctions), the ruling as to checking the status of people already under arrest is mind-numbing.
As a reader to my prior post points out, states already routinely run searches for a variety of statuses, including outstanding warrants, child support orders, and non-immigration identity checks. Each of these checks potentially could delay release of an innocent person or burden some federal agency.
The Judge’s reasoning, particularly that the status check provision violated the 4th Amendment even as to persons already under arrest, applies just as easily to these other status checks.
With a federal government which refuses to take action at the border until there is a deal on “comprehensive” immigration reform, meaning rewarding lawbreakers with a path to citizenship, this decision will insure a sense of anarchy. The law breakers have been emboldened today, for sure.
As it stands this afternoon, it is perfectly rational for someone faced with the choice of obeying the immigration laws or not, to choose not to do so. The choice of lawlessness makes a lot more sense than spending years winding through the byzantine legal immigration system, because the end result will be the same but lawlessness gets you here more quickly.
When the law and the federal government reward lawlessness, something is very wrong.
Update 7-29-2010: As others have noted, the Judge enjoined the checking of status of arrestees by reading the second sentence of Section 2(B) (“Any person who is arrested shall have the person’s immigration status determined before the person is arrested”) as completely independent of the first sentence, which requires reasonable suspicion prior to a status check. That reading by the Judge plainly is wrong, since the first sentence specifically references the requirement of reasonable suspicion after “any lawful stop, detention or arrest….” (emphasis mine) The language of the statute fully supported the state’s position, which the judge rejected, that the state only intended to check the status of arrestees as to whom there was reasonable suspicion, and who did not have any of the accepted forms of identification. Given the Judge’s rulings on preemption and the 4th Amendment, I’m not sure the result would have been any different had she read the statute correctly.
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