Federal Court Enjoins Anti-Smuggling Provisions in Arizona’s SB 1070

The following story appeared in FAIR’s September 11 Legislative Update. To subscribe to FAIR’s Legislative Update click here.

Last week, the federal district court in Arizona enjoined the anti-smuggling provisions found in Section 5 of Arizona’s immigration enforcement law, SB 1070. (Valle del Sol v. Whiting, No. CV 10-1061-PHX-SRB, D. Ariz. Sept. 5, 2012)  Intended to help stop the dangerous practice of human smuggling, Section 5 prohibits individuals knowingly transporting or harboring illegal aliens within the state, or inducing illegal aliens to enter or live in the state.  (SB 1070 Sec. 5)

The District Court ruling was the result of a second lawsuit brought against the state of Arizona brought by various open borders groups, including the American Civil Liberties Union (ACLU), National Immigration Law Center, and Mexican American Legal Defense and Educational Fund (MALDEF). The first lawsuit seeking to strike down SB 1070 – covered extensively by the media–was brought by the U.S. Department of Justice (DOJ) and resolved in the Supreme Court this June. (See DOJ Complaint)

In this case, however, Plaintiffs argued Section 5 should be enjoined for different reasons than those set forth by the DOJ.  While the DOJ unsuccessfully argued that Section 5 was an impermissible regulation of immigration and interfered with interstate commerce (DOJ Complaint at 22), plaintiffs here argued that Section 5 should be enjoined because it is preempted by federal law. In short, plaintiffs argued that: (1) federal law so comprehensively regulates alien smuggling that there is no room for state regulation in this field, and (2) Section 5 conflicts with the purposes and objectives of federal anti-smuggling laws because the scope of prohibited behavior is greater than federal law. (District Court Order, Sept. 5, 2012)

The District Court agreed with Plaintiffs, holding that federal law preempts Section 5. Rejecting the State’s argument that federal law permits state action because it expressly authorizes state law enforcement officials to arrest individuals for alien smuggling, Judge Susan Bolton held that Arizona nevertheless is not permitted to pass a law on the subject. Moreover, she argued, while federal law permits state officials to arrest for alien smuggling, it does not permit the state to prosecute such offenses. That discretion, Bolton said, rests with federal prosecutors. (Order at 8-9)  To bolster her reasoning, Bolton quoted extensively from a recent ruling of the 11th Circuit that struck down Alabama’s and Georgia’s anti-smuggling laws. (Id.)

If Arizona chooses to appeal the federal court’s decision, the 9th Circuit Court of Appeals will hear the case next.