Arizona v. United States: What remains? (Part 1)

Published on June 30th, 2012

As you are aware by now, the Supreme Court decided to uphold parts of the Arizona immigration law while striking other parts.  Justice Kennedy (nominated by President Reagan) issued the majority opinion of the Court in a 5-3 decision.  Those Justices who also hold the majority opinion are Chief Justice Roberts (nominated by President George W. Bush), Justices Ginsberg (nominated by President Clinton), Breyer (nominated by President Clinton), Sotomayor (nominated by President Obama).  Justice Kagan (nominated by President Obama) recused herself from the discussions and consideration of the law.  The Justices that concurred in part and dissented in part from the opinion are Justices Scalia (nominated by President Reagan), Thomas (nominated by President Reagan) and Alito (nominated by President George W. Bush).  Technically, using the Presidential nominations as a benchmark, one would expect the Court to have five Conservative-leaning Justices and four Liberal-leaning Justices.  However, this should not be a consideration as Justices confer and decide on cases, using the Constitution as a benchmark.  In this case, this is certainly true.

Understand SB 1070 has 12 sections; only four sections were debated.  The remaining sections that were not at dispute, in whole or in part, contained provisions outlining: the legislation's intent (Section 1); human smuggling (Section 4); consequences for intentionally hiring illegal aliens (Section 7); mandatory use of E-Verify (Section 8); circumstances in which to remove/impound a vehicle (Section 9); funding a gang & immigration intelligence team (Section 10) and severability/implementation/construction terms along with providing for a short title of the legislation (Sections 11 & 12).

The human smuggling section of SB 1070 (section 4) allows peace officers to stop any one "who is operating a motor vehicle if the officer has reasonable suspicion to believe the person is in violation of any civil traffic law and this section."  The classification of this crime is a class 2, 3, or 4 felony depending upon the age of the person being smuggled, whether or not a weapon was used, the criminal history of the smuggler and whether or not physical force is used.

In 2009's "Operation In Plain Sight", ICE Agents worked with Mexico's Secretaria Securidad Publica (SSP) to target high-level smuggling operations in Phoenix, Tucson, Nogales and northern Mexico.  As of May 2012, the Operation resulted in: the identification of 137 drop houses, the criminal arrests of 62 subjects for alien smuggling or associated crimes, ICE made 531 administrative arrests and, to date, 50 defendants have pleaded guilty or have agreed to plead guilty in relation to their roles in this alien smuggling scheme.

Section 9 provides guidelines for the removal and immobilization or impoundment of vehicles.  If a peace officer determines that a vehicle's driver does not have a valid drivers license (e.g., canceled, revoked, suspended or never issued), not financially responsible for the vehicle, or is in an accident that results in either property damage or injury or death of another person, the officer may impound the vehicle which may or may not be involved in human smuggling.

Section 7 addresses the intentional hiring of illegal aliens.  Once the federal government determines that the hiree is not authorized to work in the country, on the first violation, the employer is required to terminate the employment of all illegal aliens.  The employer must report to the County Attorney quarterly with the list of new hirees and be subjected to the suspension of all licenses for a minimum of 10 days.  If the employer is found, again, to have hired illegal labor, all licenses to do business are revoked immediately.

Most recently, Arizona arrested the president of Sun Drywall, Inc. for knowingly hiring illegal aliens.  The investigation took 16 months and the president was ordered to pay over $500k in fines and ordered to one year of probation.  For the next five years, the company must maintain employment verification forms for each employee.  To help accommodate the hiring of legal workers, SB 1070 requires the use of E-Verify for all employers in the state.

Employers must use E-Verify to confirm the employment eligibility of new hires (Section 8).  Before receiving any eligible economic development incentives (e.g., grants or loans), the employer must provide proof of registration and participation in the E-Verify program.

The untouched portions of Arizona's SB 1070 address the issues Arizona endures due to illegal immigration.  The good news is Arizona is not left completely uncovered as they can still penalize those suspected of human smuggling, seize the vehicles of illegal aliens and require employers to hire legal workers.  The law was not completely gutted.  However, the core of SB 1070 was under attack by the Obama administration.

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