SB 1070 Lawsuit Legal Analysis

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ASU Immigration Law Professor Evelyn Cruz gives discusses the federal lawsuit against SB 1070.

Richard Ruelas: We just heard from the U.S. attorney about details on why the federal government is filing suit against S.B. 1070. Now here to talk about the legal aspects of the federal action is Evelyn Cruz, a clinical law professor and the director of the immigration law and policy clinic for ASU's Sandra day O'Connor college of law. Thanks for joining us again. Try to wade through some of this for us who are not legal scholars. You heard what the U.S. attorney said. Do you get the idea -- and I guess I'm starting -- I imagine you spoke with people like me who are not legal scholars, do you think the supremacy clause is something easy for people who are frustrated at the border to understand and appreciate? How big a deal in legal circles is it in.

Evelyn Cruz: Some will say that the supremacy clause is very important because it keeps us from going into another civil war or from a state deciding they're not going to be participating in the United States governance. It keeps the United States as a whole. Before other countries. To some extent, a lot of academics would say the supremacy clause is the thread that -- supremacy clause is the thread that holds us together. Or creating statutes where they determine who will fly through airspace in Arizona or what cars will be allowed to come here and what won't.

Richard Ruelas: Have there been challenges that have come close to this, like the supremacy clause? Can you give us a example of a case?

Evelyn Cruz: There's a number of cases that I mentioned both by the federal brief and by other briefs. One being Chicanas, a case in which the state of Arizona sought to -- I'm sorry, the state of California start to punish employers and in that case, the Supreme Court said it was OK for employers to hire undocumented aliens, to do so because there was no federal law at the time and the federal government had not spoken to the issue. Had not dealt with that particular question. But also, importantly, because the courts saw it as the management of employment. As opposed to. Management of immigration and naturally, in 1986, we had the federal government create a comprehensive system for employer sanctions for when they hire undocumented aliens. There hasn't been a case, until now that brings that issue back up to the Supreme Court.

Richard Ruelas: As to whether now that the federal has a law in place about hiring --

Evelyn Cruz: Correct.

Richard Ruelas: -- whether a state can adopt what Arizona did --

Evelyn Cruz: Right.

Richard Ruelas: -- and add extra penalties or states.

Evelyn Cruz: And the lower courts have said the state of Arizona is not looking into immigration. It's looking into whether or not there's a licensing problem. Of individuals who hire undocumented aliens should lose their license. It's a licensing control as opposed to immigration. S.B. 1070 is different. The state of Arizona specifically saying they're going to deal with getting rid of undocumented aliens in their state.

Richard Ruelas: Even in the law doesn't say it in practice --

Evelyn Cruz: It has their stated purpose for why they have created the statute. And so it will be interesting to see if the courts city still say this is a police enforcement. Which is normally a thing states can do or an attempt to involve itself in a management of immigration. And there are case where is you would think that it deals with immigration, but it doesn't. The employment one from California, for example, but there are other cases, such as denying access to state jobs is another area where they have been able it act. There is space for state action, however there are limits to that action that they can take.

Richard Ruelas: So let's -- an aspect of 1070 says you can pull over on bell road if you're blocking traffic with the intent of hiring someone for work.

Evelyn Cruz: Right.

Richard Ruelas: That, by itself, might not seem like an immigration matter but because it's under this law of having a stated purpose of driving immigrants out, that's what the court will be looking at.

Evelyn Cruz: If there's a valid state interest. So each portion of the statute has to be examined independently to see whether it was -- where it stands -- it withstands.

Richard Ruelas: State interest of each one.

Evelyn Cruz: Exactly. It's not easy for anyone to tell you it will stand or it will not stand. It depends on each one.

Richard Ruelas: For a non-legal mind, it might seem like this is just one more lawsuit. I believe it makes six.

Evelyn Cruz: Six, yes.

Richard Ruelas: Against S.B. 1070. How big a deal is it that it's the U.S. government that's filed a lawsuit?

Evelyn Cruz: When it comes to the issue of the injunction issued, it's very important that the federal government is stating to the court that it feels it will be harmed irreparably by the statute going into effect. So far, the other arguments have been related to the possibility of civil rights violations which without actual proof is difficult for the judge to say, you're just exaggerating or maybe it will actually happen. But here, the federal government is saying, we'll be harmed on day one if this goes into effect. The others have made the argument that the federal government will be harmed. However it's -- they're not the individual party that will be harmed. So it does give an additional angle to the court examining the case.

Richard Ruelas: The government actually claiming harm is a bigger deal --

Evelyn Cruz: Say that the government will have harm. Yes, and also it look at a difference of arguing a supremacy case versus civil rights case. You touched on this. It's hard to argue a civil rights case if we haven't seen it yet?

Evelyn Cruz: Oftentimes, they're on the face of the statute, it violates civil rights or in a way that's -- the statute, there's a slight argument that on its face it violates civil rights. And it's difficult to prove.

Richard Ruelas: I don't know whether it's even legal to bet on the outcome of a federal case, but if you were going to bet, do you think that the federal lawsuit, A, gets the law prevented from going in July 29th?

Evelyn Cruz: I think that it stands a better chance today than it did last week that there will be an injunction. Just because the federal government has said it will be harmed. And that the federal government will not be appreciative of the statute going into effect. The federal government itself has said it will be affected.

Richard Ruelas: What about the whole law being tossed out?

Evelyn Cruz: The whole law will take a while. Because there's no actual case that fits this case exactly. And so there's judgment calls that will have to be made by the judge and look agent the particular facts of this case. And ultimately, if there's a toss -- it could end up with the Supreme Court and it's the only body that can say this is what the constitution meant in regards to issue.

Richard Ruelas: Thank you for coming on.

Evelyn Cruz:Immigration Law Professor, ASU;

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