Blocking an Immigration Law: What Does Arizona Do Now?

ENLARGE PHOTO+

Maricopa County Sheriff Joe Arpaio speaks to the media Wednesday, July 28, 2010 in Phoenix shortly before portions of Arizona's new immigration law, SB1070, were blocked by a federal judge.

Haven Daley /AP

Joe Arpaio has been a famous hardliner on immigration for years. And on Wednesday, the Sheriff of Maricopa County, Arizona, had scheduled an official training session for his deputies so that they could better enforce Senate Bill 1070, his state's controversial anti-illegal immigrant legislation that was supposed to take effect on Thursday. In fact, a new section of his infamous Tent City Jail had already been dubbed the "1070" barracks in the walk-up to the start date of the law.

But on the morning of July 28, half-an-hour before Arpaio's training session was to start, U.S. District Court Judge Susan Bolton issued a 36-page preliminary injunction that temporarily halts the most controversial section of SB1070 from becoming law. She took aim at a provision that would require law enforcement officers to make a reasonable attempt to determine the immigration status of anyone they stop, detain or arrest if there is a reasonable suspicion that they are in the country illegally — and require verification of their status before they can be released. (See pictures of immigration detention in Arizona.)

That particular section had galvanized both sides of the illegal immigration debate — not just in Arizona but around the country and across the border in Mexico. Proponents of stricter illegal immigration enforcement felt it would give law officers like Arpaio the power they needed to curb illegal immigration in the midst of federal indecision on the issue; groups that opposed the new law said it would lead to racial profiling. As it is, the first substantial thing the injunction did was to put off the Maricopa deputies' training — for a day. Nevertheless, Sheriff Arpaio said he was determined to continue a scheduled "sweep" on Thursday as planned. (See a story about Sheriff Joe Arpaio.)

"I don't think it affects what we are going to do," Arpaio insisted. "I said tomorrow we are going to do a crime suppression operation at high noon. We are not going to stop." Ever the showman, he renamed Thursday's action by crossing out the zeroes in "Operation 1070" to make it "Operation 17," a reminder that the sweep of businesses and Latino communities to pick up people on criminal charges, from false identification to smuggling, will be his 17th in the past 16 months."I'm the Sheriff of Maricopa County, and I do what I think is right for the people that I serve in this county, so I don't care what other people do."

Nothing in Bolton's ruling can keep Arpaio from his scheduled rounds. (Arpiao's team went into a workplace on Tuesday and apprehended four undocumented aliens.) But the wording of her injunction pulled back much of the law's sweep — and may make an appeal to higher courts more difficult. Bolton said the section of the law she halted would have distracted federal law enforcement from more pressing matters, unfairly intrude upon the lives of those who are here legally and unconstitutionally preempt federal immigration law by putting Arizona in the driver's seat. (See pictures of the Great Wall of America.)

Wrote Bolton: "Federal resources will be taxed and diverted from federal enforcement priorities as a result of the increase in requests for immigration status determination that will flow from Arizona if law enforcement officials are required to verify immigration status whenever, during the course of a lawful stop, detention or arrest, the law enforcement official has reasonable suspicion of unlawful presence in the United States." She continued: "In combination with the impermissible burden this provision will place on lawfully present aliens, the burden on federal resources and priorities also leads to an inference of preemption.... The Court therefore finds 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."

Bolton cited opinions from the Ninth Circuit Court of Appeals, which in 2009 ruled that it is not in the public interest to allow a state to enforce a state law that violates the "supremacy clause" of the U.S. Constitution, which says that the Constitution, and thus the Federal government, has sway over the immigration issue. Because any appeal by SB1070 backers has to go through the Ninth Circuit, Bolton may have effectively stolen the "argh" from their argument by citing an opinion from the same court.

The injunction also puts Arpaio's 1070 barracks in temporary limbo. It may still be open for use depending on how the sheriff's team interprets the ruling. But that is unlikely given that the new tent-style barracks space was specifically meant to separate people held on SB1070 charges — and now that would-be law is frozen. But Arpaio says, "I have plenty of room. I'll take 2,000 [detainees] tomorrow if I have to." Above the 1070 barracks, a watchtower flashes a red neon sign normally seen at hotels: "Vacancy." Having the barracks up, he said, "would have been a nice little extra twist where we could have locked up [undocumented people] instead of taking them over to ICE [U.S. Immigration and Customs Enforcement], but we'll put up with it."

While Arpaio admits that some chiefs of police and sheriffs don't like enforcing immigration laws, but he says the "cops on the beat are not going to be very happy" about the new injunction. "I'm sure they like to enforce illegal immigration laws." While he will not be prevented from continuing his sweep, Arpaio claims that SB1070 is still necessary in part to stop Arizona from having sanctuary cities, where undocumented people can find havens from police enforcement of immigration law. (The League of Arizona Cities and Towns told TIME there are not and have never been sanctuary cities in Arizona.)

Arpaio believes Washington should give him more credit for his sweeps' recent success because they have opened more employment and business opportunities for American citizens. "I should get an award!" he declared at a press conference on Wednesday after the injunction was announced. "They should say, 'Thank you, Sheriff. You just arrested five more in the workplace — false identification, forget that they are illegally here — now we have five more vacancies for people who are here legally.'"

American Civil Liberties Union of Arizona Executive Director Alessandra Soler Meetze told TIME that the injunction represents a major step to protect Arizona residents from racial profiling and discrimination. Nevertheless, she says, "We still have concerns that how some provisions of SB1070 may be misapplied by overzealous law enforcement like Sheriff Joe Arpaio, who has been engaging in discriminatory and pre-textual stops on the basis of race for the past three years. He is one of the most extreme examples of a law enforcement official abusing his power and operating well outside the Constitution and we will be mobilizing our attorneys to document abuses and ensure he abides by the rule of law."

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