PHOENIX - Gov. Jan Brewer says she expects to file an appeal today of a federal judge's ruling that blocked several provisions of Arizona's new immigration law.
Brewer pointed out that this is only an interim order, with the legality of SB 1070 to be determined after a full trial. And she said that while U.S. District Judge Susan Bolton was "well-informed and very thoughtful," she is wrong in concluding that the law goes beyond the authority of the state.
"We feel very confident that the bill is constitutional and it is carefully crafted."
But Attorney General Terry Goddard said the ruling was not a surprise. He pointed out that Brewer had used a power that lawmakers gave her to control the defense of the law to oust him from the team.
"I'm not going to second- guess how the case was tried," said Goddard, who is running for governor. "But I think that a joint effort would have made more sense," Goddard continued. "For political reasons, she refused to do it."
In issuing her decision - and in choosing which sections of the law should be blocked - the judge said she had "the obligation to preserve the constitutional provisions of a state legislative enactment."
Bolton rejected arguments by attorneys for the U.S. Justice Department that some sections of SB 1070 are pre-empted by federal law. These include creating a separate state crime making it illegal to transport or harbor an illegal immigrant and changes in law dealing with impoundment of vehicles that are used to transport people who are in the country illegally.
But Bolton said there are reasons why she enjoined the sections she did.
The judge paid particular attention to the most widely known provision of the law, which says that when police have stopped someone for any reason, they must inquire about his or her immigration status if there is "reasonable suspicion" the person is in the country illegally.
"Legal residents will certainly be swept up by this requirement," Bolton wrote, especially when considered in light of other requirements in the law "pressuring law enforcement agencies to enforce immigration law."
"Certain categories of people with transitional status and foreign visitors from countries that are part of the the Visa Waiver Program will not have readily available documentation of their authorization to remain in the United States, thus potentially subjecting them to arrest or detention, in addition to the burden of the possibility of inquisitorial practices and police surveillance," the judge said.
"The federal government has long rejected a system by which aliens' papers are routinely demanded and checked," Bolton continued. "The court finds that this requirement imposes an unacceptable burden on lawfully present aliens."
Bolton had similar concerns with another section that says all who are arrested cannot be released until their immigration status is determined.
She pointed out that under Arizona law, an "arrest" includes not just being handcuffed and taken to jail but even just being cited at the scene and released. In fact, she pointed out that Tucson police used this cite-and-release procedure to "arrest" 36,821 people during the 2008-09 fiscal year.
The judge also said the requirement is likely to burden Immigration and Customs Enforcement, which is required to respond to every request by a local or state agency seeking to verify a person's immigration status. That, Bolton said, "will divert resources from the federal government's other responsibilities and priorities."
Bolton made short shrift of the provision making it a violation of state law for anyone who is a citizen of another country to not have federally required documents. That section, in essence, would allow the state to arrest and hold illegal immigrants for violating Arizona law.
The judge called that "an impermissible attempt by Arizona to regulate alien registration."
Bolton said separately that the state cannot make it a crime for illegal immigrants to seek work in this state. She said Congress never intended to criminalize such conduct but instead intended to focus its penalties on companies that knowingly hire illegal immigrants. The judge said that means the state law "conflicts with a comprehensive federal (immigration) scheme and is pre-empted."
Finally, Bolton struck down the provision letting police make warrantless arrests of those they believe have committed any crime that makes them removable from this country.
The problem with that, the judge said, is that the laws that determine if an immigrant can be deported are complex. She said that's why the final decision is made by a federal judge.
"There is a substantial likelihood that officers will wrongfully arrest legal resident aliens," Bolton wrote.
