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Arizona immigration law SB 1070 - Judge blocks some sections

By Jerry Markon and Stephanie McCrummen
Washington Post Staff Writer
Thursday, July 29, 2010; A01

A federal judge on Wednesday blocked the most contested provisions of Arizona's new immigration law one day before they were to take effect, ratcheting up the legal and political debate over the increasingly divisive issue.

U.S. District Judge Susan R. Bolton's ruling handed the Obama administration a key initial victory in its lawsuit against Arizona and Gov. Jan Brewer (R). It also set up a legal struggle that is likely to play out over several years and across numerous states, with Brewer vowing to take the case to the U.S. Supreme Court and legal experts saying the high court is likely to hear it.

In her decision, Bolton accepted the Justice Department's argument that the law -- which empowers police to question people who they have a "reasonable suspicion" are illegal immigrants -- intrudes into federal immigration enforcement. She granted much of an injunction the administration had sought, blocking portions of the law from taking effect while the federal lawsuit proceeds.

The judge put on hold provisions that would require police to check immigration status if they stop someone while enforcing other laws, allow for warrantless arrests of suspected illegal immigrants and criminalize the failure of immigrants to carry registration papers. Civil rights groups and federal lawyers had objected to those provisions in particular, while Arizona officials defended them as necessary to fight a tide of illegal immigration.

"Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully present aliens because their liberty will be restricted while their status is checked," wrote Bolton, a Democratic appointee, who allowed other, less-controversial portions of the law to take effect Thursday as scheduled.

The injunction is preliminary and does not guarantee that the administration will prevail in its effort over the next several months to have the entire law declared unconstitutional. But preliminary injunctions must meet a high legal standard, and Bolton specified that the government "is likely to succeed on the merits" of much of its argument.

"The judge is sending a signal to the state: 'You're going to have a tough time,' " said Jonathan Benner, a Washington lawyer who has argued numerous cases involving federal-state conflicts.

Yet even as the contours of the legal case, which the Justice Department filed July 6, became more clear, the political din over the nation's estimated 12 million illegal immigrants grew louder. Republicans condemned Bolton's decision and what they called the administration's failure to fight illegal immigration. They were led by Brewer, who also criticized unspecified "fear-mongers, those dealing in hate" and others who have spurred economic boycotts of the state.

"I will battle all the way to the Supreme Court, if necessary," said Brewer, whose popularity has increased ahead of her reelection bid this fall. She vowed to appeal Bolton's ruling Thursday to the U.S. Court of Appeals for the 9th Circuit and to ask for an expedited review. Experts said that full court, which is controlled by a 15 to 10 Democratic-appointed majority, is unlikely to side with Arizona.

The Supreme Court -- with a working conservative majority -- accepts a fraction of appeals but may take this case because it presents a conflict of federal and state law, said Cristina Rodriguez, an expert on immigration and constitutional law at New York University Law School.

Legislatures in 17 states have introduced bills like the Arizona law, with the political climate in Utah, Oklahoma and South Carolina relatively favorable for passage. South Carolina state Sen. Larry Martin (R), who co-sponsored that state's legislation, said the ruling will not deter him. "We're still early in the innings of a major legal contest," he said.

In Arizona, opponents of the law who had been planning campaigns of civil disobedience on Thursday said they were pleased with the injunction. And Cecillia Wang, a lawyer for the ACLU -- which along with other civil rights groups filed one of six other lawsuits against Arizona -- said the judge had stopped "key egregious portions of the law."

"This is an enormous victory for civil liberties in Arizona," she said.

Hannah August, a Justice Department spokeswoman, said lawyers believe the court "ruled correctly" and added: "This administration takes its responsibility to secure our borders seriously and has dedicated unprecedented resources to that effort."

Her message was echoed at the Department of Homeland Security, where spokesman Matt Chandler vowed to increase resources in Arizona, with about 500 National Guard troops set to arrive Sunday along with hundreds of additional U.S. Immigration and Customs Enforcement agents.

The White House has sought to remain at arm's length from the Arizona case, despite President Obama's public statements against the law. The president did not mention the ruling in remarks Wednesday afternoon.

But the White House recognizes the power of the immigration debate in elections this fall as Republicans use anger over border crossings to energize conservative turnout. Senior Democrats have said they are hoping that anti-immigration sentiment drives Latino voters to the Democratic Party in 2012 and beyond.

In her 36-page ruling, Bolton indicated that she understands why Arizona passed the law, which Brewer signed in April. "The Court by no means disregards Arizona's interests in controlling illegal immigration," the judge wrote. But she accepted the administration's arguments that sections of the law target immigrants, impose a burden on federal law enforcement and are "preempted" by federal law.

The expected increase in requests for immigration status checks by Arizona authorities would "divert resources from the federal government's other responsibilities and priorities," wrote Bolton, who allowed other portions of the law to stand, including requiring police to work with federal officials in enforcing immigration laws.

Staff writer Michael D. Shear contributed to this report.

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