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Judge blocks key parts of Arizona immigration law

Paul Virtue
Fmr. General Counsel, U.S. Immigration and Naturalization Service
Wednesday, July 28, 2010; 3:00 PM

A federal judge on Wednesday blocked the most controversial parts of Arizona's immigration law from taking effect, delivering a last-minute victory to opponents of the crackdown.

The overall law will still take effect Thursday, but without the provisions that angered opponents -- including sections that required officers to check a person's immigration status while enforcing other laws and provisions that required immigrants to carry their papers at all times.

Paul Virtue, former general counsel at the U.S. Immigration and Naturalization Service, was online Wednesday, July 28, at 3 p.m. ET to discuss the ramifications of the judge's action one day before the new law takes effect.

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Paul Virtue: Hi. My name is Paul Virtue. I am a partner at Baker & MCKenzie and former INS General Counsel. I am happy to take your questions on today's decision by Judge Bolton.

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Temple Hills, MD: What are the chances the 9th Circuit picks this case up on appeal? My understanding is that she threw out the part which compelled police officers to ask everyone about their immigration law but did not say the cops could not ask.

Paul Virtue: The judge enjoined those sections likely to be found later to be unconstitutional, including the porvision requiring establishement of immigration status before releasing someone suspected of being unlawful. If the injunction is challenged I believe it will be upheld.

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Arlington, Va.: What's the next step for the law? Where does it go from here?

Paul Virtue: The judge has enjoined 4 sections of the law. The remainder will become effective tomorrow. The sections enjoined are those requiring determination of status of people arrested, the crime for failure to carry documents, the crime for working without authorization and the warrantless arrest of a person suspected of having committed a deportable offense.

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Nashville, Tennessee: What about the other states (like Tennessee) that are moving to copy the Arizona law? Will this chill those efforts?

Paul Virtue: States considering similar laws have ben and will continue to watch this case with interest. I suspect the injunction will cause those states to rethink efforts to enact provisions similar to the four that were enjoined.

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Huntsville, AL: Why would immigration reform solve anything? Wouldn't it just encourage more illegals here for free health care and welfare benefits for anchor babies? This ruling is a democrat activist judge promoting amnesty with a total disregard for public safety.

Paul Virtue: The judge explicitly declined to enjoin those provisions directed at public safety. members of Congress from both parties seem to agree that something must be done at the federal level to address the undocumented population, but disagree significantly on the right answer. An earned amnesty may be part of that solution, but only if coupled with the political will to strengthen the borders and revise the legal immigration system.

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Scottsdale, Arizona: What implications do you think this temporary injunction will have on the various boycotts of Arizona?

Paul Virtue: The judge would seem to have enjoined the most controversial provisions of the law. I think we will have to wait and see how opponents of the law react to this ruling.

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Arlington, VA: All of the so-called "controversial" provisions of this law are identical to the Federal law. If you are detained for another crime, your immigration status can be questioned. If you are here on a visa, you must carry your papers (federal law). So this law was basically the Federal law at a state level. If an American is in Mexico, he isn't only not allowed to work, he must have his papers on him at all time. So, why would we have different laws?

Paul Virtue: The question before the judge today was whether the US is likely to prove its claim that federal law preempts the state law provisions. In the four areas she enjoined the judge is saying, yes, these will likely be found unconstitutional because they are the exclusive dominion of Congress.

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Washington, DC: Will the federal government take any action to address the underlying issues related to immigration?

Paul Virtue: That is a very good question. Those of us who practice in this area and who have an interest in public policy certainly hope so. But make no mistake, it is a politically difficult issue to tackle.

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Harrisburg, Pa.: A Sheriff in Arizona stated he will have his Deputies undergo a sweep for illegal immigrants, regardless of the outcome of this court decision. Is this sweep now illegal under Federal law?

Paul Virtue: If the sweep is focused on the state crimes of harboring or transporting undocumented aliens it would be lawful under this ruling. If just focused on illegal status or working without authorization, likely not.

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Washington, D.C.: The provisions of the law struck down are all included in the Fed law. If you are stopped for another crime, your status can be questioned. You must have your papers on you at all time...that is fed law.

So, is this judge saying the current laws we have on the books, which as we all know aren't being enforced, are unconstitutional?

Paul Virtue: No, the judge is saying that federal law has "occupied the field" on this particular issue and so is unconstitutional under the Supremacy clause. The federal law on this issue continues to be valid.

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Philadelphia, Pa.: In sum, what portions of the law become effective tomorrow? What do they do?

Paul Virtue: SB 1070 was an amalgamation of amendments to existing law as well as some new provisions. Only four sections have been enjoined, the others, for example, the crime of stopping in traffic to pick up day laborers will become effective.

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Philadelphia, Pa.: I haven't read the decision, but does it reaffirm that states cannot unilaterally make decisions on immigration and even foreign policy which are reserved for the Federal government?

Paul Virtue: Yes, that is effectively is exactly what the judge is sayig in enjoining those four sections of the law.

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Woodbridge, VA: What was the law or precedent used to overturn Arizona's law? And can it be stayed? I'm hoping that Virginia and the other 48 states follow Arizona's common-sense lead and enact similar legislation.

Thanks

Paul Virtue: The court looked to the supremacy clause of the US constitution "The US Constitution shall be the supreme law of the land, the constitutions of the individual states notwithstanding" to find that federal law is supreme on the sections covered by her injunction. The injunction could be stayed by the ninth circuit court of appeals if AZ takes an appeal.

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Potomac, Md.: What is the jurisdictional authority for state laws concerning immigration issues? Does the federal government have exclusive jurisdiction in this area?

Paul Virtue: The judge has said that the federal government has exclusive authority on issues related to immigration. Thos sections she declined to enjoin (the majority) also serve a state purpose and are not attempts to regulate immigration.

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Washington, D.C.: Can Arizona pass a law requiring all citizens to carry a state identification card (driver's license or DMV ID card) and then require proof of legal residency before issuing that card? Sure, people will call them Nazis, but they've been doing that already. Has the Supreme Court ruled that states can't require proof of state ID in sweeps like drunk driver road blocks that are legal?

Paul Virtue: The courts have upheld statutes that require prove of legal residence for the issuance of drivers licenses.

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Washington, D.C.: What options do states like Arizona have now after this ruling? Tensions are clearly high and some would argue that the federal government is not taking charge of the issue. So what happens next, in your opinion?

Paul Virtue: Judge Bolton's decision will not necessarily be the final answer. This is only a preliminary injunction. The court still has to rule on the merits of the challenge and there likely will be appeals. On thos issue found to fall exclusively in Congress' jurisdiction the states and constituents will have to prevail on their elected representatives to take action.

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New York, N.Y.: Economics project we may have a shortfall of several tens of millions of wage earners that will be needed to keep our economy growing. Do you see any change in the public mood which seems to wish to restrict immigration to realizing we may need to seek to increase immigration of wage earners to keep our country's economy strong?

Paul Virtue: I don't foresee a change in the public mood as long as we are in such a difficult economy, but I can ceratinly see a change as the economic picture changes. Surveys project that some 7 million members of the current workforce are undocumented.

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Seligman, MO: Is it just me or does this ruling appear poorly written? On one hand statement is made that the law would have created a drain on federal resources through the validation and deportation process. On the other the federal government is already not actively (more passively) enforcing the federal regulation of immigration. However later in the ruling we are to apparently take separate the value that appears later in the ruling that says "Any person who is arrested shall have the person's immigration status determined before the person is released.". So either way the law diverts federal funds. Your thoughts?

Paul Virtue: I thought the judge did a good job of applying the "likely to prevail and irreparable harm" standards for a preliminary injunction and focused on enjoining only those sections which seem most likely to be found to be the exclusive province of the Congress. Diversion of federal funds by one state would be significant, but imagine the impact if all states adopted their own (slightly different) immigration policies.

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Paul Virtue: Thank you all so much for participating and for your interest in this important issue. I enjoyed taking your questions.

Paul Virtue

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