Ted Simons: Good evening and welcome to "Horizon." I'm Ted Simons. Joining me tonight are Mary K. Reinhart of "The Arizona Guardian," Howard Fischer of Capitol Media Services, and Mike Sunnucks of "The Business Journal."
Ted Simons: Arizona's new immigration law, S.B. 1070, went into effect yesterday, but without a number of key elements. Let's go step-by-step. We can't get -- can't get too bogged down. Howie, I'm not going to do any action in its entirety.
Mike Sunnucks: Mary K Reinhart: Howard Fischer: It was clear she wasn't going to avoid the whole -- void the whole thing for two reasons. Nobody asked her to void the bill in the entirety. And section 1 of the bill says it's the intent of the state of Arizona, its policy we get rid of illegal immigrants through attrition. And how do I void a statement of intent? And there are sections challenged, these are not things you would enjoin, it's a special remedy.
Ted Simons: It was interesting in the sense that in the buildup to all of this, everyone was running around -- is this law going to be totally blocked or totally accepted? The fact that it was severable didn't come up all that much.
Mike Sunnucks:: People on both extremes played it off and she cut the difference in the end. Obviously, she blocked the policing part. The part where the police would be required to ask folks for I.D. or documentation. And left in the transporting parts. The employer parts of it. So there was cutting the difference there and I think the folks in the media and the analytical folks didn't expect that.
Mary K Reinhart: She gave clues last week in the questioning of the attorneys which ones she thought solid and some she had problems with. If you listen to the conversations between the attorneys.
Howard Fischer: And not only that, as the old saying goes, let's go to the videotape. When we sat around the table a couple weeks ago, we knew she was going to have a problem with the section that said you can be arrested for a state lawsuit violation for not carrying your papers. We knew she was going to have a problem with the section where you cannot be an illegal immigrant and seek work in Arizona. That would give her heartburn. Some was a no-brainer.
Mike Sunnucks: The way the law was portrayed on both sides was about police stopping people and asking for I.D. The rest of the stuff was overshadowed in the lead-up.
Ted Simons: Let's get to the next section as I move things forward one by one, section 2, residents can sue -- didn't have too much of a problem with that. Can sue if local municipal law enforcement doesn't enforce immigration law.
Mary K Reinhart: And that's the sanctuary city part of this thing. I think the title of the bill, a year or so ago, what Russell Pearce declared victory on Wednesday. This part is in there and this is what we care the most about because we are going to enforce these laws and if they don't, we're going to sue. There's a provision in that the loser pays so who is going to be willing to bring those suits, it remains to be seen. But that's got to go forward. Something has to happen and she can't enjoin something that hasn't happened yet either.
Howard Fischer: There's a federal sanctuary city policy. In federal law, it precludes cities from setting up a policy whether they will not cooperate with the federal government. And this tracks that. Russell was on point to that. We're going to leave it up to officers. Some cities have a policy you never ask. This policy says when practicable and if there are times where it would interfere with an investigation. You've got a crime victim. This would give officers the discretion they want.
Mary K. Reinhart: But they were required under the part of the law that she enjoined. They would have been required and they're not going to be.
Mike Sunnucks: If it really stepped on the federal toes in terms of immigration enforcement, she temporarily blocked it. If it doesn't, she let it go forward.
Howard Fischer: If you look at the section she did enjoin, whether she said, it dealt with the fact of when practicable, it dealt with the fact where there's reasonable suspicion and also said in there that if it would interfere with an ongoing investigation. There wasn't a mandate in that. So clearly, there was a lot of wiggle room in there. But in terms of the sanctuary city, this was aimed at the policies. If the city of Phoenix officers says you shall not ask, that's ok. The judge said what's wrong with Arizona being as inhospitable to illegal immigrants that doesn't run afoul of the law.
Ted Simons: But she had a problem with the idea, as she put it, everyone would have to have their I.D. checked because of this particular provision.
Howard Fischer: That had to do with the definition of arrest. This section said anyone who is arrested may not be released until their immigration status is checked. In Arizona, Mike, you commit a misdemeanor and an officer comes up and writes a ticket and releases you at the scene. But you've been arrested legally and the judge said we're going to require the officer to stand around while on the phone to ICE and detain this person while on the phone to ICE? That's not in good sense that makes sense for ICE to have to check these and the people detained. What was argued to the judge, we really meant booking. Excuse me, you didn't write that.
Mary K. Reinhart: That was the part not too artfully written. The judge ruled it something that the plaintiffs had provided, which was the city of Tucson, I think, how many tens of thousands cited and released last year.
Mike Sunnucks: Putting a burden on somebody, marijuana arrests put a big burden on the police. It's still a law. To say this is a work flow burden on ICE or anybody else, I think they can make an argument against that. We pass laws all the time that are efficient and un-efficient.
Howard Fischer: I've got news for you. Walking down the street, you got a doobie in your mouth. The cop comes up to you, do you think he wants to deal with the paperwork? He's going to take it away from you. That's the difference and the mandate that's the problem.
Ted Simons: And there was a problem with the length of detention, trying to figure out what's going on here as far as status is concerned. You take someone in and she had trouble saying how long are these people going to be held before we figure out where they go from here?
Howard Fischer: The department of justice said that -- or the ACLU said it could be 80 minutes on average. John BOUMA said -- because this pulls in everyone, even if they're not suspected of being illegal, you can't release them until you verify their I.D.
Ted Simons: Now the one with the requirement to carry registration documents and says it's basically impermissible way to go ahead and do something that congress is supposed to be responsible for.
Mike Sunnucks: It's a federal law they have to carry documents around. Brewer said it's mirroring the federal law. The judge said it's an undue burden on top of that. It's not the state's function.
Howard Fischer: But the law said you can arrest them on a -- but a state crime for failing to carry federally required documents. That's where it went over the line. Mary Kay said this is inartfully crafted. If the aim was the police can detain immigrants because they didn't have the federally required papers, that's one thing. This allows them to be arrested on a state crime.
Mike Sunnucks: Anything that overlapped or burdened the feds, she didn't like.
Ted Simons: Although she said you can't make a law, quote, inconsistent with the measure of congress. Let's move on. She didn't have a problem too much with the transporting and harboring of unauthorized folks here in America. Was that a bit of a surprise, do you think?
Mary K. Reinhart: I think that provision had been narrowed enough during the debate in the legislature to perhaps give her comfort and it is already a federal crime as well and even people concerned officially, some folks in the domestic violence community who do shuttling around of folks and don't always ask, their concerns were somewhat tempered. But there are -- some of the language added in, there has to be an actual crime being committed. Not speeding. It's got to be a crime. Criminal speeding before these folks fall into provision of the law.
Ted Simons: And it doesn't say who gets in or gets to stay, just how they move around. She didn't have a problem with that. Section 6, warrantless arrests. This was a big one. Strongest words regarding this section.
Howard Fischer: The police are already allowed to make warrantless arrests. This says you can make a warrantless arrest if they've committed an offense which makes them deportable. There's a set of federal laws that makes you deportable. The problem the judge has, this is a complex section of law. We need federal judges parsing what makes someone deportable. We're going to allow officers to make that decision. She says that's not going to happen.
Ted Simons: Officers will wrongfully arrest illegal immigrations and places extraordinary burdens on legal residence aliens. Tough stuff.
Howard Fischer: One of the things I want to talk about, the labor section, she also split. The judge said she doesn't have a problem with the sections. The law that makes it a crime to stop in the middle of the street to obstruct traffic if you're there to pick up a day laborer. She pointed out ninth circuit upheld a similar law out of Redondo beach. But said it's a crime to be in the United States illegally and seek work in Arizona. That certainly runs afoul of federal law. Congress when it went after the employer, there's no crime under federal for being an illegal and seeking employment. The state making it a crime, that was beyond the power do it.
Mike Sunnucks: One thing you're going to see, and already out of Brewer and Russell Pearce and Joe Arpaio. She talks about the burden on illegal immigrants and the federal government. She isn't talking about the burden on Arizona and the lack of enforcement. And you're going to see them play that out politically and in the media game and we'll see how they play it out in the courtroom.
Howard Fischer: Politically, the burden on Arizona, Russell has talked about that. From a legal standpoint, one of the keys of getting an injunction is a balance of hardships. Arizona has been functioning without 1070. This will probably go to the 9th circuit. The damage to the state in that time while it may be financial is one thing, she's saying real people will be detained and have their freedoms infringed on unfairly and illegally.
Mary K. Reinhart: That's the key, irreparable harm.
Mike Sunnucks: We talk about the other case -- people claiming racial profiling. Nobody's been profiled yet. She's jumping the gun, this is going to be the harm coming to people. They haven't been detained and provisions in the law.
Ted Simons: That puts a unreasonable burden on local police and law enforcement to go through all of these processes while someone is still detained.
Mike Sunnucks: This judge can make a ruling based on stuff she thinks is going to happen.
Howard Fischer: You're talking about an as applied challenge. I was stopped because I was brown. She looks at the law and says is there a legal way this can be implemented and if it can, you can't have a facial challenge but she's saying the way it has to be implemented. The part about the papers, there's no way to implement it and not run afoul of people's rights.
Mike Sunnucks: They put provisions in there to ban racial profiling but she can say this steps on federal toes and a federal matter. That makes sense, but to say all of this harm is going to happen, when they put in safeguards, I can see them challenging that.
Howard Fischer: That's not about racial profiling. Mike, you get arrested, who know what it is you've done, it's the nature of a journalist. You know, Mike, I'm not sure this is a real Arizona driver's license. Until we can get ICE to confirm your status, you're going to spend the night in tent city. It has nothing to do with racial profiling. That's the problem.
Ted Simons: Let's move on. The governor asking the ninth circuit to overturn this thing. And talk about the special session or lawmakers addressing what the judge didn't like.
Mary K. Reinhart: I was going to segue with what Mike was talking about. Challenging a law that hasn't been put in place yet. Could help in the appeals process. The ninth circuit could look at the whole thing.
Howard Fischer: It has a de novo review of what the judge said. Only the challenged sections. You're right, start over again and they don't have to rely on the judge's logic. Now, this judge issued a careful ruling and clear about what she did and why and talked about the burdens under federal law for issuing an injunction. They're going to start over and the government has to prove there was irreparable harm and a likelihood of success when this goes to trial.
Ted Simons: That could still mid September without the -- or later, without the expedited process, who knows how long it's going to last. With all of that going on, will the legislature come back and say we're going to target this and that and the other and get it over with?
Mary K. Reinhart: And put it to bed and we could be done with it. But the chance, I would --
Mike Sunnucks: They could draft a law to say we're going to enforce the federal statute on certain things. They could do that. If they wanted to, they could make a broader I.D. law, not just geared toward immigrants and you could apply it to everybody and that might stand up to a legal challenge.
Howard Fischer: Well, I'll give you a simpler answer. No, it ain't going to happen. The house speaker said why would we want to fix something we know we can eventually prevail on? Russell Pearce in his own way said, well, you know, this judge is just a Clinton appointee and looking for a seat on the ninth circuit and clearly going to be overturned and from the perspective of the democrat, Kyrsten Sinema said, why fix something that is flawed?
Mike Sunnucks: Politically Republicans will have a vote everyday of this week now. They could keep bringing it up and say we’re for this…The Democrats can keep bringing it up and having the same vote, we're for doing this and here's the Obama administration and Terry Goddard and Democrats on the wrong side of the issue.
Mary K. Reinhart: People are running for election and re-election and nobody wants to come into the legislature for any reason.
Ted Simons: You wrote about this, the political fallout. What are you hearing from Republicans and Democrats? You would think the Republicans would say we may have lost. And Democrats, we won to a certain degree. Not the case, huh?
Mary K. Reinhart: When the judge's ruling came down it looked like a victory for the anti-1070 people and wait, this keeps the immigration issue front and center for how long. There's debate and headlines and sucks all the oxygen out of the room as it has for the last year, six months. It doesn't allow discussion about economy and education and healthcare and all of that stuff now continues to be at the bottom of any conversation and that's not good for Democrats because they can't win on this issue.
Howard Fischer: If the judge did not issue an injunction, it would be the U.S. department of justice at the ninth circuit asking for a expedited appeal. Either way, we would still be dealing with this in October.
Mary K. Reinhart: What if the law went into effect? There -- of course, there were challenges. All day long. But if it had gone into effect and nothing had happened, is it the possibility that other things would have been talked about in the campaign?
Ted Simons: Does it take all of the oxygen out of the room or lift a little bit and take the steam out of the issue so other issues can rise?
Mike Sunnucks: I think it's all immigration all the time and a big winner for Joe and Brewer and Pearce. 65% of Arizonans support it. The majority of Americans support these laws, and these protests yesterday downtown, that was a different group of people there. It wasn't the high school kids. These were the people coming from California, the union members, the anarchists and the people who go to G20 and protests. And they watch these things and they weren't people they related to and I think Jan and Joe really won, especially yesterday with the protests.
Mary K. Reinhart: Democrats are in a impossible situation. They can't be opposed to immigration reform. They don't want to brush it under the rug, clearly it's an issue for everybody and Mike says, the polls say folks want something done about border enforcement and they have a difficult time coming out and criticizing too much S.B. 1070. They can poke around the edges little bit, but think about the sales tax, that thing won because there was -- in part because there was no opposition to it. If there'd been a full blown opposition to S.B. 1070, I wonder if the polls would have been different.
Howard Fischer: The way the Democrats handle it, they say, 1070 doesn't solve the problem. That's the key. If you try to deal with the border, you can't with these things.
Ted Simons: We'll end it right there. Thanks for joining us.