Key Part of Arizona Immigration Law Could Take Effect Soon

POLITICO

By Josh Gerstein

August 8, 2012

http://www.politico.com/blogs/under-the-radar/2012/08/key-part-of-arizona-immigration-law-could-take-effect-131491.html

A central part of Arizona's law cracking down on illegal immigration could take effect shortly, after a federal appeals court Wednesday formally cleared the way for the first enforcement of a controversial provision requiring police to conduct immigration checks on people they stop, question or arrest whom they suspect are in the country illegally.

The Supreme Court ruled in June that the courts should not have blocked the so-called mandatory-check provision in S.B. 1070 from taking effect on the grounds that it interfered with federal authority over immigration. However, it was not until Wednesday that the U.S. Court of Appeals for the Ninth Circuit officially returned the case to U.S. District Court Judge Susan Bolton in Phoenix.

The Ninth Circuit's order (posted here) puts the ball back in Bolton's court. She could lift the injunction on the mandatory check provision at any time.

However, lawyers involved in the case suspect it may be a couple weeks or more before she acts. That's because immigrants' rights and civil liberties groups have a separate lawsuit pending challenging the mandatory-check portion of the law on the grounds that it is sure to lead to unconstitutional detention of individuals and to racial profiling. The law suggests that those undergoing immigration checks could not be released until the checks are complete, but state officials have said it would not be interpreted that way.

The State of Arizona's response to the groups' motion to block that provision, known as Section 2(b), is due on Friday. Bolton has already said the groups can have another week after that to file a reply. That means the issue is likely to be ripe for a decision by Bolton any time after Aug. 17, though she technically doesn't have to wait that long to to lift the injunction if she's inclined to do it.

"We're hoping she will wait until the issues regarding 2(b) are fully briefed," said Alessandra Soler, executive director of the Arizona chapter of the American Civil Liberties Union. "We're trying to everything we can to hold off implementation of 2(b)."

President Barack Obama's Justice Department, which brought the suit that eventually went to the Supreme Court, had no comment in response to a query from POLITICO about whether the feds support the private groups' motion to keep the mandtaory-check provision blocked on other grounds. The feds' lawsuit solely addressed the state-federal conflict.

The Justice Department has never officially entered the fray over possible racial profiling or the fact that the law could lead to prolonged detention of U.S. citizens or foreigners legally in the U.S. The Supreme Court voted 8-0 to allow the mandatory check provision to take effect, but during oral arguments and in the opinions, several justices expressed concern that the provision could lead to profiling or unconstitutional detention of individuals. DOJ officials have said they'll be carefully monitoring Arizona's enforcement of the law and have set up a hotline to field complaints about it.

Spokespeople for Gov. Jan Brewer (R-Ariz.) did not respond to queries Wednesday about when the much-discussed immigration-check provision would or should kick in. Some in the GOP leadership nationally might prefer to see it happen after the November election, since the first enforcement of the provision is likely to draw an outcry from Latino groups.