Several weeks ago, I made this
observation about the Obama Administration’s lawsuit against
the State of Arizona and Governor Jan Brewer:
When the DOJ argues that S.B. 1070 “will impose significant and
counterproductive burdens on federal agencies” what they mean
is that the ICE operated Law Enforcement Support Center in
Williston, Vermont could get a lot more phone calls from
Arizona. So it could blow the overtime budget of DHS. This is
an administrative issue, not a constitutional one. Perhaps it
will cause some inconvenience for the feds. But let us never
confuse inconvenience with unconstitutionality.
Yet this is exactly what U.S District Court Judge Susan
Bolton did when she blocked parts of the Arizona’s immigration
law last week. One of the key arguments that led to Bolton’s
decision was put forward by David Palmatier, the Unit Chief of
the Law Enforcement Support Center (LESC), a hotline available to
federal, state and local officials 24 hours a day, seven days a
week to determine an individual’s immigration status. Palmatier
filed a declaration with the U.S. District Court in Arizona,
stating his objections to S.B. 1070:
In my professional judgment, Arizona S.B. 1070 will inevitably
results in a significant increase in the number of IAQs
(Immigration Alien Queries). The LESC processed just over
1,000,000 IAQs in FY 09. According to the FBI Criminal Justice
Information Services (CJIS), in FY 09 criminal justice agencies
in Arizona submitted 563,474 arrest records to CJIS, but just
over 80,000 IAQs originated from all agencies within the state
of Arizona in FY 09. Thus, Arizona’s SB 1070’s requirement that
“(a)ny person who is arrested shall have the person’s
immigration status determined before the person is released”
could, by itself, dramatically increase the LESC’s workload.
Moreover, because Arizona’s law calls for status verifications
for lawful stops — whether or not such stops result in an
arrest — the number of IAQs will increase dramatically. If
even a small percentage of these stops, detentions, and arrests
lead to new IAQs, the LESC will be forced to process thousands
of additional IAQs annually. Moreover, Arizona’s new law will
result in an increase in the number of U.S. citizens and lawful
permanent residents being queried through the LESC, reducing
our ability to provide timely responses to law enforcement on
serious criminal aliens.
Needless to say, Judge Bolton
was sympathetic to Palmatier’s argument:
Mr. Palmatier states in his Declaration that LESC resources are
currently dedicated in part to national security objectives
such as requests for immigration status determination from the
United States Secret Service, the FBI, and employment-related
requests at “national security related locations that could be
vulnerable to sabotage, attack or exploitation.” Thus an
increase in the number of requests for determinations of
immigration status, such as is likely to result from the
mandatory requirement that Arizona law enforcement officials
and agencies check the immigration status of any person who is
arrested, will divert resources from the federal government’s
other responsibilities and priorities.
For these reasons, the United States has demonstrated
that it is likely to succeed on its claim that the mandatory
immigration verification upon arrest requirement contained in
Section 2(B) of S.B. 1070 is preempted by federal law.
There is no way the State of Arizona ever intended to have
its law enforcement officials check the immigration status of
every single person arrested in their jurisdiction. In
fact, the State of Arizona said as much in its arguments before
Judge Bolton and it is a point she acknowledged in her decision.
Yet that did not stop Judge Bolton from writing, “The Court
cannot interpret this provision as Arizona suggests.”
Judge Bolton’s thinking (and for that matter Palmatier’s)
begs this question. If a person produces a passport, a driver’s
license or some other government issued identification during a
lawful stop, detention or arrest by an Arizona law enforcement
official, why would said law enforcement official then develop a
reasonable suspicion that person was in the country illegally?
If, in fact, it was Arizona’s intention to check the immigration
status of every single person they arrested, then I would argue
that Arizona would be doing the very opposite of racial
profiling. Yet somehow I don’t think critics of S.B. 1070 would
be inclined towards such generosity.
But putting aside the question of whether it is actually
mandatory for Arizona law enforcement officials to contact the
LESC following every single arrest, let us assume that Palmatier
is correct in his assessment that the implementation of S.B. 1070
would result in a dramatic increase of IAQ requests to his
agency. So what if does? The LESC will simply have to find a way
to deal with it whether by lobbying for more resources or
reallocating existing ones. I am not suggesting the
implementation of the Arizona immigration law doesn’t present
administrative, budgetary and other logistical challenges for the
LESC. But it does not present a constitutional challenge.
According to 8 United States Code, Section 1373(c) —
Obligation to respond to inquiries:
The Immigration and Naturalization Service shall 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.
Whether Palmatier likes it or not,
the State of Arizona and its municipalities have as much right as
the FBI, the Secret Service or any other federal agency to
inquire about an individual’s immigration status even if it makes
life at the LESC more inconvenient. Let it be said once more.
Inconvenience must never be confused with unconstitutionality.
One can only hope a higher court will recognize this and overturn
Judge Bolton’s shortsighted decision.
