6-29-12 "Arizona Horizon"
Ted Simons: Good evening, and welcome to "Arizona Horizon," I'm Ted Simons. Joining me tonight are Alia Rau of the "The Arizona Republic," Mike Sunnucks of the "Phoenix Business Journal," and Luige del Puerto of the "Arizona Capitol Times." A big week for U.S. Supreme Court rulings, let's start with the big decision involving Arizona. Alia, this just came down Monday. Take us through what the Court looked at and what the Court decided.
Alia Rau: The court looked at four separate provisions of S.B. 1070. A lot of people think those are the only provisions. I'll remind people several provisions had to be allowed to go into effect in the beginning. One dealt with warrantless arrests, one dealt with illegal immigrants seeking work, one dealt with stop, detain and arrest, and one dealing with paperwork. The Supreme Court ruled that three of them should be enjoined. The one that allows law enforcement to question illegal immigrants in certain situations should be allowed to go into effect.
Ted Simons: And should be allowed to go into effect because the court kind of made the -- I think implied they don't know how it's going to be enacted. They left the door open even for that to have further review, correct?
Alia Rau: Yeah, depending on how -- they sent it back to the lower courts. The lower courts will have to decide how exactly it'll go into effect. Law enforcement has to decide how exactly they are going do it. Then everyone will regroup and see, okay, is this really constitutional.
Ted Simons: Indeed. This is a surprise for a lot of folks. What did you hear?
Mike Sunnucks: I think it was a mixed decision. I think folks on both sides were a little surprised and a little pleased. I think the Governor and the sheriff and folks that like crackdowns on illegal immigrants at least got the chance to ask folks about their status, if it comes up after they arrest them for something else or detain them for something else. I think they were glad the whole thing was not thrown out. But from the way the oral arguments went earlier, they really peppered the White House counsel with a lot of questions. It looked like the Court would maybe side a little more favorably for all three things. Obviously a warrantless arrest was a no brainer when you look at the constitution. Carrying your papers, that was a bit of a mixed decision I think, it was kind of a half and half. Folks thought it was going to stay and go. Maybe restricting migrant laborers, day laborers, could have stayed, but I think they got something out of it. So I think both sides were happy and disappointed at the same time.
Ted Simons: But Luige, what did they get out of it, because the governor was criticized for immediately coming out and saying it was a great victory unanimously, this, that, and the other. When you have Justice Scalia writing a scathing dissent, you wonder what exactly you won. What does this allow? And in the grand scheme of things what does it really mean?
Luige del Puerto: As Alia mentioned earlier, some did not take effect. Local governments and state agencies cannot implement policies that would restrict the full implementation of immigration laws. So the so-called sanctuary city policy, that's already in effect. In addition, there is a part of the law that says that if law enforcement, for example, or if a city does not implement federal immigration laws to the full extent of the law, they can be sued. They are saying, those who support S.B. 1070, if you took that provision and if you took the provision that allows or requires, rather, law enforcers to check into people's legal status, those two items are at the very heart and soul of S.B. 1070. Therefore they are saying the other ones are just side dishes, if you will.
Mike Sunnucks: You say this is happening more in other states now. Alabama has passed similar law. The Court gave guidance for folks to craft their laws based on this decision. You'll see the Russell Pearce’s of the world take their message to other states and try to pass it there.
Ted Simons: Alia, what is the message? How does it apply in the real world? Sounds as if it's not a state crime to be here, and you are required by law to stop folks if you have the reasonable -- after you've stopped someone for a reasonable suspicion, you send them to I.C.E., and --
Alia Rau: Maybe.
Ted Simons: -- maybe -- and I.C.E. has been told we have a priority list. In the real world what has changed here?
Alia Rau: That's the debate right now. A lot of people think this isn't going to have much impact. Law enforcement has always been allowed to question somebody. All this says is now you have to. But it doesn't say you have to do anything beyond that. Even if they say, yes, I'm an illegal immigrant; you technically under 1070 don't have to notify I.C.E. about it. We've had the Feds come in and say under the limited Dream Act, we have a population you shouldn't worry about at all, because they are now somewhat protected. You've got the removal of the 287-Gs in Arizona. I.C.E. has been given very clear directions about which people, you know, when law enforcement does call, who you come and get and who you don't.
Mike Sunnucks: But the goal I think was to get a more uniform application of that. You have the sheriff's office on way one end of this, and some local Police Departments and various jurisdictions in the state on the other end, to varying degrees. I think the goal was to try to get everybody on the same page so the police don't let a serious criminal go and find out they are undocumented. Real world, whether that happens -- There were some worst case scenarios that popped up over the last decade. It's very rare. Wouldn't you think the police, if you arrest somebody, and say they have a Russian accept, they are not Hispanic and don't have I.D., that that kind of investigative trail would lead them to those common sense questions?
Luige del Puerto: It really goes back to what the Court says is in the provision. We will find out how the provision has been upheld and how it'll be implemented in the field. If we find out there are potential constitutional problems, like holding someone for a long time while trying to check a person's legal status that could run against the Fourth Amendment, for example. There are other lawsuits against S.B. 1070. One of them essentially delves into the question of racial profiling. I think what's happened is that activists or advocates of immigration rights, immigrants' rights, are asking the Hispanic community mostly to document whenever they have encounters with law enforcement, so that they can present evidence in court later on in this other case and convince the justices that this is constitutional.
Ted Simons: In the grand scheme of things again here, we have both sides kind of admitting they thought they won. Upon further review, it kind of looks like the pro 1070 side won but a bit of a Pyrrhic victory. How do we see this in the end run?
Alia Rau: Like Luige said, you've got this same lawsuit. They may file another injunction request to stop this before it even goes into effect. We may be back here before the Supreme Court with a whole other racial profiling issue.
Luige del Puerto: The supreme court decision, in addition to the climate that we have, plus the other parts S.B. 1070 that were upheld. It really put the police in a delicate situation. They have to show, in their enforcement, that they are not racially profiling. They have to show that there is reasonable suspicion when they would ask for someone's legal status. The question is, how did they determine whether there was reasonable suspicion? How would they get to that question? The developments this week put them in a very delicate situation.
Mike Sunnucks: You're going to have to have some kind of uniform treatment of folks. Almost all of your undocumented folks are from Mexico. There are others, but most of them are from Mexico with a certain skin tone. If you're only asking people that are brown their immigration status, you're going to run into these profiling things. Everybody has to show their I.D. at the airport and driver's license. They have uniform steps and treat everybody fairly in the same way, then they might be able to avoid this. If they pick on one group of people they will open themselves up to these lawsuits, and the whole thing can be squashed.
Ted Simons: The injunction is still in effect until Judge Bolton I guess goes ahead and lifts the injunction and gives her reasons, we're still waiting for this to be enacted.
Alia Rau: Yes. And it won't be until I think at least July 20th. The Supreme Court said, we're going to give everybody a chance to file appeals. It'll be at least July 20th, either Bolton or the 9th Circuit.
Mike Sunnucks: Like you said, the pro people, the Brewer’s and Arpaio’s, feel they won, because at least the law is still there for now. The lower courts were going strike the meatier parts of it down. I think they feel like they got a win. Whether it's applicable in the real world is another question.
Ted Simons: Sounds like nothing much happened in the real world. But the Court did say the states do have a role when it comes to enforcement, a limited role but they have some sort of say, correct?
Luige del Puerto: I guess my take-away from the court decision is that the Court very clearly stated that when it comes to immigration enforcement, or purvey over immigration in general, that authority belongs to the federal government. In fact, they were very clear when they said that authority may be extended to local officials or local law enforcement. That's what we have, for example a 287-G agreement, which allows our local enforcers to verify someone's legal status. By the way, also this week the Obama administration severed that agreement. So all of these developments, you can ask, inquire of a person's legal status. The next question is, what happens when you call I.C.E. and you don't have the 287-G agreement anymore.
Ted Simons: Alia, folks thought they had kind of a big win, and once reality set in, they weren't quite so sure what they won. What were you hearing out there?
Alia Rau: I think it was a little bit of everything. People thought it was great. Russell Pearce said this was the heart of the law and he's thrilled the Supreme Court ruled that way. You have the immigrant community very concerned, but we didn't see -- I don't think the general concern from the general Hispanic community that we maybe saw when the law was first passed. There was definitely concern and there were definitely rallies and stuff. But I don't think we will see a mass exodus sort of like we saw in 2010.
Ted Simons: And Mike, politically, does this galvanize anyone? Does it galvanize the right, the Latino community, whichever direction they intend to go to? Or is the immigration fatigue going to settle in again here? What does this mean?
Mike Sunnucks: I think in Arizona it's kind of status quo. I think the folks committed to that issue on both sides will use this, and the Obama dream act, immunity, whatever you want to call it. They will use that as a galvanizing effect. I think there will be other states trying to craft laws to fit within this ruling. For the conservative thought on that, the states do have a role, that's a win for them. They could have said no, this is a federal purview; they could have thrown most of it out.
Ted Simons: A big week for the Supreme Court. They upheld the affordable Care Act, talk about what was upheld and why, and what it means for Arizona.
Luige del Puerto: Pretty much the entire law was upheld, except the part that expanded the Medicaid program. The Court basically said this is unconstitutional because you cannot force the state to comply with that law by threatening them, that the Feds would withhold the portion that they are giving to the states. Basically the Court said that's unconstitutional. But there is a way to implement this one, basically you give the choice to the state, whether to expand the Medicaid program or not. Everything else in the law was upheld. But for reasons that were very surprising -- and I think everybody was pontificating, weeks and months before this ruling and everybody got it wrong.
Ted Simons: Everyone thought obviously the commerce clause was supposed to be the big deal here. Chief Justice Roberts comes out and says, oh, commerce clause, oh yeah, unconstitutional. Tax, eh, passes muster.
Mike Sunnucks: Yeah, that was the headline of the ruling, that the original mandate stood because Roberts and the he four liberal justices feel it fits under taxation powers. Which was probably a shock to most people on the right and probably a shock to the White House. The President was stressing there wasn't any taxes in there. They found a way to justify individual mandate, which really keeps the whole thing alive. If they had gotten rid of that, it crumbles. There wouldn't be enough people coming into the pools to sustain it. It was certainly a short-term political win on the policy side for the President. Republicans, from Mit Romney all the way down to Arizona and Ben Quayle, glommed onto this very quickly. I thought whoever lost the decision; their political base was the one that would be energized. Democrats and folks on the left would have rallied if they had thrown it out. But they won, and so now Republicans' first priority is to get rid of Obama care.
Ted Simons: And Arizona will have an exchange. They have been working with that throughout the past few months, haven't they?
Luige del Puerto: They have been working on implementing an exchange program I think since last year. We don't know if we're going to have an exchange. The Governor's office has applied for and received money from the Feds to plan, design this health insurance exchange. But the Governor's office hasn't quite said that we will establish an exchange. The problem is that there's a prevailing sentiment that in order to do that it would need legislative approval. Right now we're getting federal money to implement this -- plan for and illustrate this exchange. Later on we would need a funding source for it. When we talk about funding that authority belongs to the state legislature. The Governor's office, if she so decides at some point that there would be a state-run exchange in Arizona, she would have to convince the state legislature to go ahead and approve it, and then provide funding for it.
Mike Sunnucks: There's a couple problems here implement be in Republican states like Arizona. There's such a conservative wave against the idea of this, that trying to get a legislature or governor to go along this is going to be a challenge. And with the amount of confusion around this bill, everybody kind of understands the mandate, that's what the coverage has been about. "The Wall Street Journal" poll asked business owners whether they thought they qualified for the tax credit. 70% had no idea, they don't even know. You don't really know how this applies to you, and that's going to be a big education process. I don't think a conservative legislature or conservative governor are going to exert a lot of energy to try to implement.
Ted Simons: Is that the way you see it, as well, to implementing regarding the health care plan, good luck Charlie?
Alia Rau: That's my understanding. A lot of states passed it and we didn't hear word one in the Arizona legislature this year, they didn't touch the issue.
Ted Simons: So, what does that mean? How far can the state say no? Eventually the Feds will come in and do something themselves, aren't they?
Luige del Puerto: We are facing deadlines. By November of this year we are supposed to tell the Feds and show them our blueprint and basically say, guys, this is what we're going to do, and so approve it. According to the law, the federal government must improve a state's plan for a state-run exchange by January 2013. We're up against deadlines here. Now, the thing is, if we are not going implement this exchange, the federal government will run the exchange for us. People will have the website where they can go, individuals, and small businesses, will have their websites, that's for Arizona that, they can go to and purchase a health plan. The question is whether the state government would run it or the federal government would run it. If we don't do it, the federal government will come in and run it for us.
Mike Sunnucks: I think you'll see a lot of folks from the right come in and look at this option. If we don't have a State program, we can let the Feds do it and wash our hands of it.
Ted Simons: You can wash your hands, but what about your funds?
Mike Sunnucks: That's the carrot out there and the stick, if you don't go along with it. The Feds do it all the time with all types of funding and administrations. That would be the only thing that would bring states like Arizona along, here's the cash you miss out on.
Ted Simons: A couple of things that did not involve the U.S. Supreme Court, one involved secretary of state Ken Bennett who said that a sales tax initiative, a plan to make permanent the temporary sales tax, that initiative disqualified, not good? Talk to us about this.
Alia Rau: The group had gathered more than 200,000 signatures. From what I understand there were discrepancies between the documents they gather signatures on and some of the documents they submitted to Ken Bennett didn't match. The secretary of state's office says this isn't legitimate and doesn't go on the ballot.
Ted Simons: How do you not march had your petition people send out?
Mike Sunnucks: It's surprising who was behind this thing. This wasn't a bunch of disorganized grass roots folks. Like the folks trying to get the Coyotes on there, a couple of old guys. These are moderate businesspeople, people who have done this before. These aren't a bunch of local locals doing this. They had a bunch of drafts and ideas of who was going get the money for this. They were trying to build a coalition. It's basic stuff that you've got to be able to do. They had the infrastructure to get the signatures; it's odd they couldn't keep their ducks in a row.
Luige del Puerto: They submitted two things a paper format and a electronic version which was in a disk. When the secretary of state received the two items, they look at the paper format, and stamped it, because that's the way things have been done for many, many, many years. It turned out two versions were different. There was an additional pot of money that would go to two additional -- essentially the universities and to state infrastructure, that's not in the secretary of state's version or the one stamped by Ken Bennett's office. So when this thing was discovered and it was actually the Arizona tax research association that informed Ken Bennett about it -- Ken Bennett said if that's the case we will not accept, if there's a direct discrepancy. That's what happened.
Ted Simons: Now it goes on to court because the group that filed the petition said, okay, it doesn't necessarily match word for word but the substance is there. 150-some-odd words, substance is there. How far that is going to fly?
Luige del Puerto: Their main argument is the secretary of state got a true and current copy. The problem was it was in a disk. They are saying the secretary of state should have taken and stamped essentially. So their argument would be that we did submit -- submit to the secretary of state the correct version. It's the version they used to circulate petitions and gather signatures. That's the other argument they present to the court. They have substantially complied with the laws for initiatives. Basically they said everything else is correct. We have 290,000 people signing our petition. One thing to put this initiative on the ballot and the court should not dismiss that.
Mike Sunnucks: If they find an open-minded judge that's a little flexible, yeah, they have a chance to win that. If they find a judge where everything’s black and white, it could be a little tougher.
Ted Simons: Alia, how flexible would a judge have to be to award Scott Bumgarden $10 million -- million -- dollars?
Alia Rau: Awfully flexible.
Ted Simons: Tell us what's going on here.
Alia Rau: He filed a civil suit today for $10 million in damages. The Police Department filed false documents, kind of a smear campaign basically alleging he never claimed legislative immunity. They said he did, he said they ruined his reputation.
Ted Simons: Defamation, police negligence, this is serious stuff here. But I think a lot of folks are wondering why is he doing this?
Mike Sunnucks: It's a he said, she said type case, just like his original case. I guess he could try to convince the court he is in the right. You've seen a lot of folks in the sheriff's office settle these things. Maybe he's hoping for a settlement, maybe he thinks he can clear his name.
Ted Simons: A handful of police officers, handful of eyewitnesses, lots of folks. He never -- he didn't even agree to testify at the ethics committee hearing, and yet $10 million?
Luige del Puerto: I'm scratching my head why he's doing it, especially now.
Ted Simons: Does it make any sense to you at all?
Luige del Puerto: No, it doesn't make sense to me.
Ted Simons: Why don't you e-mail him and say, what are you doing? Where are his friends and the people advising him on stuff like this?
Luige del Puerto: He's always maintained he never claimed legislative immunity, always his story from Day One. If I were to speculate, he's trying to -- I don't know if salvage is the right word -- salvage his reputation. Basically telling people, guys, I told you before, I didn't claim legislative immunity. Here's my lawsuit. I'm saying again I never claimed legislative immunity.
Mike Sunnucks: It was very public until it came for him to testify to the legislative thing, he resigned. Maybe he wants to get his few more two cents in.
Ted Simons: Thanks for joining us. Good week, good stuff, appreciate it. Thank you so much for joining us, you have a great weekend.