The U.S. Supreme Court has blocked Arizona from enforcing yet another provision of its controversial 2010 immigration law.
Without comment, the justices refused Monday to overturn a federal appellate court decision which concluded Arizona has no legal right to make a state crime to knowingly transport or harbor those not in the country illegally. The same provision also makes it illegal to “encourage or induce the alien to come to or live in Arizona.”
Monday's ruling is the latest in a string of federal court decisions blocking Arizona from enforcing various sections of SB 1070.
But the decision is not the last word on the “harboring” provision. Instead it simply keeps in place an injunction issued two years ago by U.S. District Court Judge Susan Bolton staying enforcement while she considers arguments over its legality.
That process could take months – or longer – as no date has been set for a trial.
But in issuing the injunction, Bolton had to conclude that challengers are ultimately likely to prevail in their arguments that the state, in enacting the law, exceeded its authority.
Andrew Wilder, spokesman for Gov. Jan Brewer who signed the original 2010 measure and has fought to enforce it, said his boss was disappointed by Monday's ruling.
“Arizona's ability to combat criminal elements of illegal immigration in our own state is further eroded by this decision,” Wilder said. “The ruling is yet another blow to the state's responsibility and authority to enforce public safety and defend the well-being of its citizens.”
But attorneys for challengers pointed out there already are federal laws making it a crime to harbor those not here legally.
The legal question still left for Bolton to decide is whether Arizona can have its own statutes.
John Bouma, the private attorney hired by Brewer, has argued there is nothing improper about Arizona having its own laws aimed at controlling immigration. He said the fact there are federal laws criminalizing the same conduct does not preempt state action.
But Omar Jadwat of the American Civil Liberties Union argued that the Arizona statute is not a mere parallel of the federal law.
He said the Arizona law creates “additional and different penalties not contemplated by federal law.” Jadwat said that even where Arizona law overlaps federal harboring laws, it divests federal authorities of their “exclusive power to prosecute these crimes.”
Those arguments were enough to convince the 9th U.S. Circuit Court of Appeals, whose ruling the Supreme Court upheld.
Appellate Judge Richard Paez said allowing Arizona to have its own laws on harboring would effectively allow the state to bring charges against people in ways that actually would be contrary to federal policies.
He specifically cited the Deferred Action for Childhood Arrivals program implemented by the Obama administration which allows certain people here illegally who arrived in this country as children and meet other conditions to remain and work. But Paez noted that Brewer has deemed those in the program “unlawfully present aliens,” a category she uses to deny them the ability to get a state driver's license.
Paez said that if Arizona were allowed to enforce its law “it would authorize the prosecution of those who transport or provide shelter to these young people despite the fact that the federal government has chosen to allow them to stay, and work, in the country.”