Ruling on Arizona's S.B. 1070 Mostly Right, but Wrong on Day Labor Law

By Jon Feere on September 10, 2015

Last week's ruling by U.S. District Judge Susan Bolton was on the last of seven challenges to Arizona's S.B. 1070, put into law in 2010. Three provisions in S.B. 1070 were the focus of the decision: (1) the so-called "Show me your papers" provision; (2) a provision allowing Arizona law enforcement to transport aliens to federal custody facilities; and (3) a provision prohibiting day laborers and their employers from operating on city streets.

The U.S. District Court for the District of Arizona upheld the first two provisions, but found for the pro-illegal immigration plaintiffs on the day labor provision. An explanation of the decision follows, along with an explanation of why the court arguably did not get the day labor analysis correct.

The Immigration Status Determination Law

Sometimes referred to as the "show me your papers" law, Section 2(B) of S.B. 1070 allows Arizona law enforcement to make a reasonable attempt at determining the immigration status of people they stop, detain, or arrest on other grounds.

Specifically, Section 2(B) requires state law enforcement officers or agencies to make a "reasonable attempt ... to determine the immigration status" of any person they stop, detain, or arrest on some other legitimate basis. The reasonable attempt at determining immigration status occurs if "reasonable suspicion exists that the person is an alien and is unlawfully present in the United States." The law also provides that "[a]ny person who is arrested shall have the person's immigration status determined before the person is released."

The plaintiffs, a handful of radical open-border groups (see the list of those who filed amicus briefs when the issue was previously before the Supreme Court, here), argued that the law violated the Supremacy Clause, the Fourth Amendment, the Arizona Constitution, the Due Process Clause, the Equal Protection Clause, and an equal rights statute found at 42 U.S.C. § 1981. Basically, they threw everything at the wall hoping something would stick.

In the Supreme Court ruling on S.B. 1070, the Court held that Section 2(B) was not preempted on its face and did not interfere with federal immigration law. The Court did address constitutional concerns over prolonged detention while the checks are performed, but described ways in which Arizona courts could interpret the law to avoid any constitutional problems.

The District Court explained that the plaintiffs were making old arguments and "generally make the same arguments the Court has already considered and rejected in the preliminary injunction stage." The District Court held that it would not depart from its prior analysis and that the plaintiffs were attempting to challenge a law that was not preempted on its face and could be interpreted to avoid constitutional concerns.

Turning to the other claims, Arizona argued that the plaintiffs cannot establish that S.B. 1070, on its face, will have a discriminatory effect and that there is a lack of evidence that S.B. 1070 was enacted with a discriminatory purpose. The court reasoned that the plaintiffs "have admittedly not produced any evidence that state law enforcement officials will enforce S.B. 1070 differently for Latinos than a similarly situated person of another race or ethnicity" and ruled in favor of Arizona, dismissing the claims.

This law could have the positive effect not only of promoting the deportation of foreigners who do not belong in the United States, it might also help create a record of illegal aliens presented to the federal government for deportation. The records could help illustrate how often the federal government refuses to return foreign nationals to their home contries and instead instructs state law enforcement to simply release the illegal aliens. Opponents of the law are currently seeking arrest data as a way to prove any allegations of discrimination.

The Illegal Alien Transport Law

Section 2(D) of S.B. 1070 allows state law enforcement agencies to transport illegal aliens to federal facilities and hand them over to federal officials. Opponents of S.B. 1070 argued that the law is preempted and conflicts with the federal removal system. In reality, these open-border groups know that the federal government is not doing a great job removing illegal aliens and they do not want states helping Immigration and Customs Enforcement to carry out its responsibilities.

Specifically, Section 2(D) of S.B. 1070 provides:

Notwithstanding any other law, a law enforcement agency may securely transport an alien who the agency has received verification is unlawfully present in the United States and who is in the agency's custody to a federal facility in this state or to any other point of transfer into federal custody that is outside the jurisdiction of the law enforcement agency. A law enforcement agency shall obtain judicial authorization before securely transporting an alien who is unlawfully present in the United States to a point of transfer that is outside of this state.

In analyzing the plaintiff's argument that this law overrides federal law and unconstitutionally empowers Arizona law enforcement, the District Court explained: "Plaintiffs read too much into the law." The court then explained the language in the law, noting that it requires Arizona law enforcement to first verify the detained person's immigration status, that the law is not a source for state officials' arrest or detention powers, and that it "cannot be read on its face as authorizing detention for civil immigration violations."

The court also noted that federal law authorizes state and local officials to perform immigration enforcement duties "under cooperation agreements and in other circumstances" and that these duties "can include transporting detainees".

The court explained that "if state law enforcement agencies implement policies or practices ... that raise constitutional concerns", those actions can be challenged on a case by case basis. The court noted that this applied to actions involving both Section 2(D) and 2(B), above.

The court found for Arizona and dismissed the arguments from the plaintiffs.

The Day Laborer Law

The third issue involves Arizona's prohibition on day laborers who swarm city streets seeking employment. It has been a long-time public safety concern of communities across the country that day laborers — who are largely illegal aliens — will flag down cars and shuffle into traffic, competing with each other to get hired by law-breaking employers. The employers generally pick up a handful of workers right off the street and drive them to the worksite.

The crowds of laborers range from a few dozen to a few hundred. According to one expert at UCLA, day laborers are overwhelmingly Hispanic, recently arrived, and in the country illegally; little over 1 percent of day laborers are either U.S.-born or of a non-Latino background.

Though controversial day labor hiring centers are often available in cities with large illegal alien populations, the workers generally prefer to loiter along streets so they can avoid the formality of taxpayer-subsidized hiring centers. This leads to traffic congestion, public safety concerns, and often exploitation of the workers. Concerns common to day laborers include public urination, defecation, drunkenness, and harassment of women.

In an attempt to discourage some of the problems related to day laborers, Arizona legislators wrote a bill in 2010 that was later incorporated into S.B. 1070. The constitutionality of the provision was brought into court and in 2013 the Ninth Circuit Court of Appeals affirmed a preliminary injunction barring its enforcement.

The Arizona provision at issue, found in Section 5 of S.B. 1070, reads as follows:

A. It is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.

B. It is unlawful for a person to enter a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic. [Codified at Ariz. Rev. Stat. § 13-2928(A)-(B).]

Prior to the decision by the Arizona court, the Ninth Circuit analyzed the constitutionality of this law and determined that it violates a day laborer's First Amendment right to free speech. The act of day laborers seeking out work in the middle of the street was appropriately analyzed as commercial speech, a position that I have argued for years. Though the Ninth Circuit and the U.S. District Court approached the issue from a commercial speech angle, the courts stumbled on a key part of the analysis.

Simply put, the Supreme Court has previously explained that commercial speech may be defined as someone communicating "I will sell you X at Y price." Unlike most speech, however, the Constitution accords a lesser protection to commercial speech than to other forms of expression. The protection available for a particular commercial expression turns on the nature of the expression and of the governmental interests served by its regulation.

The Supreme Court has held on many occasions that commercial speech can be regulated, even curtailed if it is related to unlawful activity, and came up with a four-part test for analyzing whether a regulation of commercial speech is constitutional. For the purposes of analyzing the Arizona day labor law, the most relevant part of the test is the first inquiry, namely whether the speech is "misleading" or "related to unlawful activity". If it is, then it is unnecessary for a court to look at the remaining three prongs of the test; speech related to unlawful activity is not constitutionally protected. Here's the test as quoted by the Ninth Circuit:

We evaluate restrictions on commercial speech using the four-part test from Central Hudson: (1) if the communication is neither misleading nor related to unlawful activity, then it merits First Amendment scrutiny as a threshold matter; in order for the restriction to withstand such scrutiny, (2) the State must assert a substantial interest to be achieved by restrictions on commercial speech; (3) the restriction must directly advance the state interest involved; and (4) it must not be more extensive than is necessary to serve that interest.

In its 2013 decision, the Ninth Circuit explained: "The proposal of an illegal transaction is ... categorically exempted from First Amendment protection because it lacks social value." Nevertheless, the key finding from the court, as articulated in one section's headline, is this: "Day Laborer Solicitation Is Neither Misleading nor Related to Unlawful Activity."

This week's decision from the U.S. District Court notes that "It is undisputed that the day labor provisions are subject to First Amendment scrutiny as restrictions on lawful, non-misleading speech."

However, an illegal alien who is posing as legally employable while seeking employment is engaging in misleading speech and it is commercial speech clearly related to unlawful activity: the illegal employment of an illegal alien. Neither the Ninth Circuit nor the Arizona court appears to have considered this perspective. The state of Arizona should have pushed harder on this point. But because the first prong of the four-prong test was ignored, the courts analyzed the law through the remainder of the test and found that Arizona didn't meet the burden required for the law to be upheld.

Citing the legal test on this subject, the court explained that "Even if the day labor provisions directly advance Arizona's substantial interest in traffic safety ... the restrictions 'must not be more extensive than ... necessary to serve' a substantial government interest." The court held that "the day labor provisions are not narrowly tailored to serve Arizona's substantial interest in traffic safety" and restrict more speech than is necessary.

In sum, Arizona won two of three arguments in this decision and state and local law enforcement should now be in a better position to discourage illegal immigration to the state.