In one of the great ironies of life, the recent US Supreme Court decision on gun rights could doom SB 1070.
The gun rights decision focused on whether US Constitutional rights apply to state and local governments…in this case the Second Amendment.
The issue revolves around whether the 14th Amendment to the Constitution allows a “reach through” to apply federal laws and rights to states.
The US Supreme Court used the 14th Amendment to reach through and strike down state and local laws regulating guns in violation of the Second Amendment.
What we have in Arizona with SB 1070 is a state trying to meddle with what is clearly federal law…immigration.
Under the same legal theory used to strike down gun restrictions, federal courts may have an open door now to strike down SB 1070 as infringing on federally pre-empted authority.
I’ll bet gun rights advocates will be surprised that their victory reaches to a lot of places where federal pre-emption can be applied to state and local government protecting people’s federal rights and freedoms they didn’t see coming.
On a second level, another defect in SB 1070 is the attempt to dictate to local governments what their law enforcement priorities should be.
It is well settled law in Arizona that prosecutors have absolute discretion over which cases they prosecute and which ones they don’t. There are limited resources to enforce the law, so cops and prosecutors have to have discretion where they focus their resources.
What SB 1070 attempts to do, especially via the citizen suit provision, is to dictate to local jurisdictions that enforcing immigration law takes precedence over local decisions on where to use their law enforcement resources. My guess is the courts will strike SB 1070 down also on the basis that the legislature cannot divert police and prosecutorial resources to enforce a non-violent misdemeanor offense.
Opponents of illegal immigrants keep whining “but they violated the law”. Yes they did…and everyone violates laws all the time. All laws are not equally enforced because of the limitation on resources to do that…and that is reality. It is clearly a situation where Joe Arpaio and his buddies want to divert Arizona’s law enforcement resources to the immigration issue.
Too bad all the energy being spent to try and run illegal aliens out of the state couldn’t be spent on finding a way to create a legal path for workers to be here. The absence of any serious effort on the part of the anti-immigrant crowd to solve the problem with a legal path speaks volumes about the racist undertone to this fight.
My bet is the courts will make short work of SB 1070 because the state cannot get into the immigration issue, and the legislature cannot usurp police and prosecution discretion as to where to use limited law enforcement resources.
[Note: I am an attorney and a former prosecutor.]