EA's US Politics correspondent Lee Haddigan writes:
Last week saw the latest twist in the controversial saga of SB 1070, Arizona’s law to combat illegal immigration. Parts of the law were temporarily blocked by a judge in June. The Discourt Court of Appeal's ruling that the law is constitutional is due to be heard in San Francisco on 1 November, a day before the Congressional elections.
On Monday, the 9th Circuit Court of Appeals announced that it will allow eleven Latin American countries, including Mexico, to submit friend-of-the-court briefs backing the US Justice Department’s challenge to the law.
The Court of Appeals will also consider legal briefs filed this week by five cities in Arizona. The cities contend that the injunction barring implementation of certain parts of the law should be permanently adopted, citing the cost of those new measures and claiming resources to fight serious crimes like armed robberies would be diverted to checking the legal status of detainees.
Another hurdle looms for SB 1070 on 8 December, when the Supreme Court is due to begin hearings on an earlier attempt by Arizona to deter illegal immigration. At issue is the 2007 Legal Arizona Workers Act, which attempted to stop the employment of illegal aliens in the state by punishing the employer. Like the far more notorious SB 1070, the 2007 Act is being challenged as a pre-emption on federal immigration law. Legal analysts expect the 2007 legislation to be overturned, providing a reliable indicator as to how the Supreme Court will rule if and when SB 1070 is debated before them.
The constitutional opposition to SB 1070 in the courts currently relies on arguments that it usurps federal supremacy on the subject of immigration. The civil rights implications of SB 1070 only become relevant if the law overcomes this challenge. Of the six arguments contained in Mexico’s brief opposing the law, only one addresses the problem that SB 1070 “Poses a Risk of Harassment by Law Enforcement to Mexican Citizens”. The other five question the legislation on grounds of jurisdiction, for example, “SB 1070’s Intrusion in International Affairs Impedes International Relations and Bilateral Collaboration in Cross-Border Issues”.
Lost amid the clamour surrounding SB 1070 is the intent of the law, which Judge Bolton did not enjoin back in June at the original Court of Appeal hearing. She accepted that Arizona has the right to pursue the policy of "attrition through enforcement", reducing illegal immigration by limiting the employment opportunities and public benefits of aliens. Arizona Governor Jan Brewer has taken pains to point out that the decision did not prohibit the threat of prosecution of local agencies if they did not pursue illegal aliens to the full extent of state and federal law, establishing informal ‘sanctuary’ protection for illegal immigrants.
Enter Arizona's neighbour, the state of Utah. Unofficial statistics suggest that, because of Arizona’s law, are leaving the Grand Canyon State for other locations. Utah, along with New Mexico and Washington, allows illegal aliens to get driving licenses, and recent months have seen a rise in the number of applications for the documents.
In August, State Representative Stephen Sandstrom introduced the Utah Illegal Immigration Enforcement Act. Sandstrom has modeled UT-IIEA after SB 1070, which “incorporates several clarifications" addressing points raised by Judge Bolton over the Arizona legislation.
The emphasis of UT-IIEA, like the Arizona law, is to discourage illegal immigration in the state by attrition through enforcement. The central provisions of the Utah law do not call for mass deportation of aliens but send the message that they are not welcome within the state. Two sections “create an improved version of the anti-sanctuary provision in Arizona’s SB 1070”. Another section, which is not included in SB 1070, tries to end public benefits for illegal immigrants by requiring all applicants to have their eligibility verified by the federal SAVE program. Officials of state and local agencies who do not follow this procedure are liable to be fined.
The fate of UT-IIEA is uncertain, with significant opposition in the state. Michael Clara, chair of the Utah Republican Hispanic Assembly, has compared the bill to a “witch hunt", and Democrats have been keen to point out that it would negatively affect the tourist industry through boycotts similar to those threatened against Arizona.
But the significance of UT-IIEA lies in its endorsement of attrition through enforcement, accepted so far by judges. Unless the 9th Circuit Court addresses that issue in November, their decision in the SB 1070 case will have only short-term effect. Lawmakers in Arizona will merely need to write a revised bill that, as the Utah version has done, implements anti-sanctuary sections without challenging federal supremacy.