Monthly Archives: July 2010

SB 1070 Challenge not Over Yet

As expected, Arizona Governor Jan Brewer just announced the state will appeal Judge Susan Bolton’s decision to grant a preliminary injunction on SB 1070, which means the struggle continues. Although the injunction is great news for the immigrant rights movement and for all Americans and immigrants, when the clock strikes midnight tonight, several backwards provisions in SB1070 are still going into effect.

Tomorrow, it will be a state crime for persons to harbor and transport undocumented immigrants, and the state could impound/remove the vehicle used for harboring/transporting.  Some day laborer provisions remain intact as well. For example, it is unlawful to enter a vehicle in order to work or to hire someone, in a manner that impedes normal flow of traffic. This was an argument made in the friendly House complaint and not addressed in Bolton’s decision.

Further, the decision did not enjoin the private right of action by individuals to sue law enforcement if they maintain that police are not enforcing immigration law to the  fullest extent authorized.

Such issues not covered raises additional questions that will have to be worked out on appeal or back in the legislature. For example, since police cannot ask for documents, what exactly do individuals have a private right to sue for?  It also remains a question whether yet another injunction will be granted for the Friendly House case. It’s ambiguous because although the judge granted today’s injunction for U.S. v Arizona and not for Friendly House, her decision responds to several issues raised in the Friendly House case– not in the DOJ case.

In the meantime, the real challenge tonight is for the WH to respond in a proactive way. More than just patting their DOJ on the back, the president needs to proactively get in front of the issue and lead congress to enact CIR.


Judge Bolton grants Preliminary Injunction on SB1070

This afternoon Judge Susan Bolton, federal district judge, Arizona, granted a preliminary injunction to stop enforcement of provisions in SB 1070, Arizona’s ‘papers please” law.  The decision shifts the narrative in the immigration debate. no longer can anti immigrant conservatives insist that Arizona is merely enjoining acts also enjoined by federal law.  According to the court, Arizona preempted federal authority to regulate immigration.  The message for other states intending to follow the Arizona template: “don’t do it.  It is illegal.  You will be challenged. And, you will be beaten.”

So, when SB1070 goes into effect tomorrow, July 29, 2010, the state will not be able to require police to inquire about the immigration status of anyone they stop, detain or arrest if they reasonably suspect the person is in the countryb illegally. (Section 2)

It will not be able to criminalize the solicitation, applicatioon for, or performamnce of work by an undocumented immigrant (part of Section 5)


The state cannot authorize the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable. (Sec 6 of SB 1070)

Still to come is a trial on the merits. The state of Arizona can, and likely will appeal the preliminary injunction.  So the 9th circuit could reverse as soon as tomorrow, or. it could take months.  Still to come is a decision on the merits and likely, lengthy appeals.

In other words, today’s victory is a step in the process. Hopefully, it shifts the debate; Hopefully too, it puts pressure on the Obama Administration to show stronger leadership over the CIR debate.

The preemption issue is important; but perhaps more important as far as the quality of life for immigrants is concerned, is for the court(s) to also attend to underlying privacy, due process and equal protection issues.  Whereas preemption deals solely with federalism and prevents a patchwork of strong anti-immigrant state laws, the problem of systemic abuse against immigrants applies to the federal programs as well as to state transgressions.

Shirley Sherrod and National Guard to the Border: An unsettling pattern

In the last 24 hours, news of the National Guard’s deployment to the border and the Vilsack firing and perhaps rehiring of Shirley Sherrod show the limits of the Obama Administration’s iron cage of rationality.  One of the tags on Obama is his excessive rationality, so much so that it casts a shadow over his ability to be motivated by emotion.  Well, cast that aside as yet another Obama myth.   This uber-rational of administrations has taken action in these two instances on the basis of fear not rationality.  The Sherrod affair and the Administration’s border politics share three characteristics: race-sensitive topics, 2) right wing distortions and threats; 3) appeasing the right and fanning racial fear.

In each instance the Administration has taken sides with the right and Fox news racialists against the side of rational argument, the facts, oh, yeah, and civil rights. Now let’s be frank. The President’s race has a lot to do with the right wing’s exploitation of these issues.  It need also be said that the President’s race does not make his Administration a moral beacon on instances of race.

Quite the opposite. the Obama Administration keeps tripping over itself to not appear biased on race, so much so that it sides with the Right wingnuts over the reasonable and common sense dictates of civil rights and the rule of law.

And who is being victimized by the President’s loss of reason?   Residents along the border, in Arizona, and Shirley Sherrod, along with the rest of us who believe in the rule of law and in the normative argument that civil rights have been a good thing for this country, and that such progress must continue.