A Further Perspective

Unconstitutional or Inconvenient

Arizona has been told: The federal government is simply too busy -- or lazy -- to enforce our nation's immigration laws.

By 8.4.10

Send to Kindle

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.

Like this Article

Print this Article

Print Article
About the Author
Aaron Goldstein writes from Boston, Massachusetts.