Law experts discussed the legal challenges to Senate Bill 1070 during a panel Wednesday night and left out the politics.
The panel at the Tempe campus, sponsored by the Chicano/Latino Law Students Association, was meant to be informative, said Andrea Esquer, law student and a board member of the group.
“We felt it was important to keep political rhetoric out of this event,” Esquer said. “We didn’t want people to walk in with the preconceived notion that everyone here would be opposed to the law.”
ASU law professor Catherine O’Grady was on the panel and said it is difficult to make a “facial challenge” of a law successfully.
“These challenges are brought on the face of the statute before the state has even had a chance to have the law go into effect,” she said.
O’Grady’s area of study focuses on facial challenges like these. She said the district court requirements for striking down laws that have yet to be implemented require that the challengers prove that “irreparable harm” will be done if the law is allowed to go into effect.
“[This] invites parties to prove up ways they will suffer this harm,” she said. “These types of arguments are not treated with favor by the appellate court.”
On July 28, U.S. District Judge Susan Bolton blocked four key provisions of the statute from going into effect, which the state of Arizona quickly appealed to the 9th Circuit Court of Appeals. The appeal is scheduled to be heard in early November.
O’Grady said the theory behind those who are defending the law is that it mirrors federal law. If it does, O’Grady said, the federal law would trump the state’s law.
To attack the law, opponents are using a theory called field preemption analysis. This idea holds that if a federal law occupies the whole “field” of a particular issue, no state can pass a law in that area.
“If the intent of Congress can be thought of as occupying the whole field, then it doesn’t matter what the state is doing,” O’Grady said. “Don’t try to mirror it, don’t do the same thing, it’s a federal matter.”
The courts have to decide if the state law mirrors federal law, and then determine if states are able to make such laws, O’Grady said.
The idea of a challenge to a “mirror law” has not yet been widely tested, she said.
The lawsuits that have been filed against SB 1070, like the one by the American Civil Liberties Union, are all facial challenges.
Daniel Pochoda, legal director for the ACLU, was also on the panel and said many parts of the immigration law do not mirror federal law.
“There are differences in enforcement practices,” Pochoda said. “There are federal priorities in how they allocate resources.”
Associate law professor Carissa Hessick said in an interview before the panel that the state law creates a system where every person suspected of being in the country illegally is arrested and detained, whereas the federal government, in its enforcement of federal immigration laws, would not detain every suspected illegal immigrant.
Hessick was not on the panel but was one of the authors of “A Legal Labyrinth: Issues Raised by Arizona Senate Bill 1070,” which was published in late May.
She said the federal government uses discretion in arresting illegal immigrants in the same way local police officers do for any other law.
“Police officers don’t give tickets to everyone who speeds or is parked at an expired meter,” Hessick said. “Similarly, the federal government is saying they don’t have the money or resources to check the immigration status of every person arrested in the U.S.”
She said in this way, the state law does not mirror the federal law.
“The federal government does not deal with everyone who is here illegally by putting them in jail,” she said.
Arizona lawyer Daniel Ortega was on the panel and said the federal government took the most important step in this case by filing its own lawsuit.
“Their role in this is saying, ‘This is how we’re going to be affected,’” said Ortega, who is chairman of the board of the National Council of La Raza, a Hispanic civil rights organization. “They will have more likelihood of getting heard, and that’s the only one [Bolton] has ruled on, so that should show you something.”
The event, which was attended by about 40 students and community members, was intended to inform, Esquer said.
“It’s the beginning of the school year and people who are not from Arizona don’t know about the legislation that was passed over the summer,” she said. “We wanted to start a discussion about what the law is.”
Reach the reporter at ymgonzal@asu.edu
