Last week, a federal judge appointed by President Bill Clinton, Judge Susan Bolton, blocked the enforcement of Arizona Senate Bill 1070, which was passed in an effort to control the flow of illegal immigrants into Arizona. In order to do that Judge Bolton gave a reading of the law and the evidence that the parties presented that fails to meet one of the fundamental principles of statutory interpretation: The court should give effect to each of the words of a statute if possible.
Section 1373(c) of Title 8, U.S. Code, requires the Department of Homeland Security to “respond to an inquiry by a Federal, state, or local government agency, seeking to verify or ascertain the citizenship status . . . for any purpose authorized by law, providing the requested verification or status information.” To do that, the United states told the court that DHS established the Law Enforcement Support Center (LESC), which, “serves as the national enforcement operations center that promptly provides immigration status and identity information to local, state, and federal law enforcement agencies regarding aliens suspected of, arrested for, or convicted of criminal activity.” The United States explained, “Congress established the LESC to provide alien status determination support to federal, state, and local law enforcement on a 24-hour-a-day, seven-days-a-week basis.” (All emphasis in quotations is mine.)
From the repeated references to state and local law enforcement, one might have thought that DHS would be willing to respond to requests to verify the immigration status and identity of persons from Arizona law enforcement agencies regarding those who Arizona suspects of, arrests for, or convicts of criminal activity. After all, that seems to be what Congress told DHS to do.
That’s not the case, though. DHS says that, if it gets too many requests from state and local law enforcement agencies, it will be diverted from paying attention to the government’s other responsibilities and priorities. In particular, DHS said that it needed to reserve a portion of its LESC resources for national security objectives, such as requests from federal law enforcement agencies for immigration status determinations and employment-related requests at “national security related locations that could be vulnerable to sabotage, attack, or exploitation.” Judge Bolton found this showing persuasive, stating that requests from Arizona and other states considering the adoption of similar laws “is likely to impermissibly burden federal resources and redirect federal agencies away from the priorities they have established.”
Judge Bolton may have agreed with the United States, but her view makes a hash out of 8 U.S.C. § 1373(c). Several years ago, Judge Andrew Kleinfeld of the Ninth Circuit, who recently took senior status, chided his fellow judges when they misread federal law. He noted, “Our tools of statutory construction are many, but they do not include an eraser.” In reaching her decision, Judge Bolton simply used an eraser to take the inconvenient words “state or local government agency” out of the statute.
In so doing, Judge Bolton gave inappropriately short shrift to the declaration of Jessica Vaughn, Director of Policy Studies at the Center for Immigration Studies, that Arizona filed in response to the position of the United States. In her sworn statement, Vaughn pointed out that, in August 2007, when New Jersey started checking the immigration status of all those arrested for a felony or DUI, DHS had no problem handling the new requests even though the number of LESC inquiries doubled in the first year. Colorado, Virginia, Georgia, and Oklahoma have adopted “similar policies that have been implemented without apparent undue impact” on LESC. Adding Arizona’s anticipated requests to LESC’s workload would not be likely to overload LESC.
In fact, Vaughn notes that DHS relies on referrals from state and local law enforcement agencies “to locate and remove criminal aliens and investigate criminal cases involving foreign nationals.” More than that, federal immigration officials “cannot properly do their jobs without the active participation of local law enforcement,” so they “actively solicit” the cooperation of state and local law enforcement agencies.
Vaughn’s declaration suggests that DHS has been saying one thing, but doing another. In order to let DHS do that, Judge Bolton had to read DHS’s evidence selectively, ignoring its references to assisting state and local law enforcement so that DHS could complain that it might be overloaded. She also had to take an eraser to 8 U.S.C. § 1373(c). Giving short shrift to the words “state” and “local” was error, and the appellate courts should set the district court straight.