SB 1070, SCOTUS, Friendly House, and a Ray of Hope
Such comments are particularly frustrating because if states are allowed to come up with their own immigration enforcement schemes, we could, hypothetically, be looking at 50 different enforcement schemes.
It would make more sense, considering that immigration law is the purview of the federal government, for the feds to maintain exclusive control over the enforcement of immigration law.
But the feds have already muddied the water with programs such as Secure Communities and the ill-fated 287(g) program, which trained local cops to enforce federal immigration statutes.
In particular, 287(g) opened the door for bad players like Sheriff Joe Arpaio to go rogue with his immigration sweeps in Hispanic neighborhoods. These, ironically, became the pretext for the U.S. Department of Justice to investigate Arpaio for racial profiling.
So now the feds are in the difficult position of arguing that, yes, local law enforcement can enforce federal immigration law, but only when we say so. Not a particularly convincing line of reasoning.
However, there is a more powerful argument against section 2(b) , which is that it violates the Fourth Amendment's prohibition against unreasonable search and seizure because it will lengthen the time someone is detained.
There could also be 14th Amendment claims, specifically related to racial profiling, though this would likely require gathering evidence, such as has been gathered in the ACLU's racial profiling case against Sheriff Joe, Melendres v. Arpaio.
Fourth Amendment arguments are part of a separate 1070 lawsuit, Friendly House v. Whiting, brought by the ACLU and MALDEF. This case is before Judge Susan R. Bolton, the judge who enjoined portions of 1070 on the grounds of federal preemption in U.S. v. Arizona.
Lawyer's for the plaintiffs in Friendly House have asked for parts of 1070 to be enjoined based on violations of Fourth Amendment. In an October 8, 2010 order, Bolton said the matter was moot because she had already enjoined the sections of the law in question based on federal preemption in U.S. v. Arizona.
But Bolton acknowledged that there were valid Fourth Amendment claims. In her order, she wrote:
"Since the Court previously found that the United States was likely to succeed on its challenge to this provision on preemption grounds, rendering Plaintiffs' Motion for Preliminary Injunction moot, the Court does not engage in a full preliminary injunction analysis on Fourth Amendment grounds.
"However, there appear to be substantial questions as to whether Subsection 2(B) would withstand a challenge under the Fourth Amendment, and some of the facts supplied, both in this case and the related cases, suggest that Plaintiffs could demonstrate a likelihood of success on the merits of this claim."