Amid the controversy arising from the federal district court’s decision to strike down portions of Arizona’s Senate Bill 1070, one must keep in mind the fact that the case is at its most preliminary stage. Judge Bolton, of the U.S. District Court for the District of Arizona, did not issue a final decision on the merits of the case; she merely granted the federal government a “preliminary injunction,” preventing Arizona from enforcing portions of SB 1070 until the court undertakes full review of the case and issues a final decision on the merits. Accordingly, the court did not hold that portions of SB 1070 are unconstitutional; it held merely that the “the United States is likely to succeed on the merits” when the case is heard in full.
Of course, that’s probably a distinction without a difference. Judge Bolton likely will not reverse course and rule in Arizona’s favor, unless either the U.S. Court of Appeals for the Ninth Circuit or the U.S. Supreme Court rejects the district court’s analysis of federal law’s effect on SB 1070. Arizona already has appealed to the Ninth Circuit, and the oral argument is scheduled for November.
Nevertheless, the district court’s decision already has been the subject of harshly cogent criticism by Heather Mac Donald, Andy McCarthy, and former assistant secretary of homeland security for policy Stewart Baker, among others. But with respect to the most controversial aspect of the court’s decision – striking down SB 1070’s mandate to check the immigration status or lawful presence of certain persons – a few points deserve amplification.
SB 1070‘s immigration-verification provision is comprised of two controversial requirements:
8 U.S.C. 1373(c), in turn, is a federal statute that requires the federal Immigration and Naturalization Service to “respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.”
In her decision, Judge Bolton reviewed SB 1070’s second provision first, and interpreted it in the strictest manner possible: She concluded that by using the term “any person who is arrested,” SB 1070 requires law enforcement to contact INS with respect to every single person who is arrested for any reason whatsoever. Then, the court concluded that involving INS with every single arrest in the state of Arizona would put an impermissible burden on INS’s resources; Judge Bolton held that federal law preempted that provision.
That analysis, assigning the statute the harshest possible interpretation, ignored several canons of construction – that is, the traditional rules of statutory interpretation. First, the “canon against absurdities” requires the courts (in Justices Kennedy’s and Thomas’s words) to eschew a statutory interpretation that “would be, in a genuine sense, absurd, i.e., where it is quite impossible that [the legislature] could have intended the result … and where the alleged absurdity is so clear as to be obvious to most anyone.” It strains credulity to suggest that the Arizona legislature actually intended to require all law enforcement officers to contact INS every single time a person is arrested, for any reason. Never was it suggested that SB 1070 was passed for the purpose of adding an entire new layer of federal INS involvement in every single arrest, regardless of whether there was a reasonable question of the arrestee’s immigration status.
Second, the “canon of constitutional avoidance” counsels that “ambiguous statutory language be construed to avoid serious constitutional serious constitutional doubts.” In this case, Judge Bolton should have interpreted SB 1070’s arrest-verification provision to avoid the preemptive result unless Arizona’s alternative interpretation was altogether unreasonable. Reading the provision against the background of the SB 1070 as a whole, it’s hard to suggest that the statutory language unambiguously commanded the interpretation that Judge Bolton assigned to it.
And Judge Bolton compounded these problems by her application of 8 U.S.C. 1373(c). That statute requires INS to respond to state and local requests for immigration-status verification “for any purpose authorized by law.” By passing that statute, Congress protected the interests of state and local law enforcement, despite the burden placed on federal resources. But Judge Bolton’s analysis turned the statute on its head – rather than protecting state interests, the statute would protect the federal government’s interest against receiving too many requests for state verification, despite the statute’s requirement that INS respond to “any” state or local verification request for “any” lawful purpose. (How ironic: Judge Bolton read an implied “reasonableness” requirement into the federal statute, one that was necessitated only because she refused to give SB 1070 a reasonable interpretation.)
Having struck down the arrest-verification requirement as preempted, Judge Bolton next struck down the other above-quoted provision – which required verification of the lawful presence of persons who are lawfully stopped, detained, or arrested – on similar grounds: “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 [during lawful stops, detentions, and arrests].”
As stressed above, Judge Bolton concluded only that her analysis made it sufficiently “likely” that federal law actually preempts SB 1070. The “likelihood of success” standard isn’t defined with unchanging precision; it operates as a “sliding scale” depending on the relative stakes of the parties, as well as on other considerations. So it was not inappropriate for her to give the federal government at least a benefit of a doubt. And other canons of construction undoubtedly weighed in favor of Judge Bolton’s interpretation of the statute. But to cast SB 1070 in the harshest possible light – one that assumed that Arizona desired absurd results – and to convert 8 U.S.C. 1373(c) from the states’ shield into the Obama administration’s sword, went far beyond any benefit of the doubt.
Ironically, Arizona’s most effective remedy might be to follow the course paved by the Obama administration weeks ago, when it lost a similar preliminary decision in the offshore drilling moratorium case: Rather than pursue appeals all the way to the Supreme Court, the Obama administration swiftly acted to correct what the district court found defective.
In this case, Arizona could follow the Obama administration’s example by amending SB 1070 to make perfectly clear that not every arrest requires INS involvement. The Obama administration would then need to convince Judge Bolton to hold that federal law preempted the new statute, despite the fact that the heart of the judge’s prior analysis no longer applied. That may well prove to be swifter remedy than could be found in the overworked (and consistently left-leaning) Ninth Circuit.
Adam J. White is a lawyer in Washington, D.C.
