Editor: Immigration reform has long been on the President's agenda, and has lately been a prominent issue in the morning newspapers. Nancy, I understand that you're familiar with a recent lawsuit filed by the Justice Department to block Arizona's recent immigration law. First, please give us your background, and then give us some background about the recent lawsuit.
Morowitz: I'm counsel to the firm and I work with our Professional Practices Group, which monitors legal developments in the immigration world for the firm and our clients. I'm also involved in some of the firm's publications on U.S. and global immigration law.
In early July, the federal government filed suit against the State of Arizona, arguing that Arizona's S.B. 1070, as amended, violates the Constitution's Supremacy Clause and is preempted by federal law. The lawsuit also asserts that if Arizona's law were enforced, it would interfere substantially with the federal government's immigration enforcement priorities, which focus on identifying and removing criminal aliens. The broad reach of S.B. 1070 could sweep into the enforcement system many individuals who are not violating U.S. immigration laws. The government argues that that could severely tax the system and divert enforcement resources away from the problem of criminal aliens illegally present in the United States. There is also the concern that the Arizona law raises foreign policy concerns by jeopardizing the United States' relationship with other countries and that it poses humanitarian concerns with respect to non-citizens who may be seeking asylum or other protections from the U.S. government.
Editor: Is there a central database, either at the federal or state level, of people who are known to be undocumented?
Morowitz: I think that's one of the difficulties with Arizona's law - no such database exists. Several other federal court challenges to the law have raised the point that it's very difficult to know whether a person who may have initially entered the United States unlawfully might have a valid claim to lawful status in the United States. This is one of the many factors that would make it complicated for an Arizona law enforcement officer to understand just who is unlawfully present in the U.S. under the Arizona law, because there is no central information system that the police could rely on.
Editor: What sort of documentation is acceptable under federal and Arizona law?
Morowitz: Under federal law it's long been a requirement that non-U.S. citizens carry documentation of their immigration status. For a lawful permanent resident, this means the actual green card. For other categories of non-citizens, it might mean a U.S. Citizenship and Immigration Services document proving that the person is authorized to work in the United States. For still others, it could mean their foreign passport containing Form I-94, the Department of Homeland Security document that indicates their immigration status and lawful period of stay in the United States.
The Arizona law essentially adopts the federal requirements, and adds a few additional acceptable documents, including the Arizona driver's license and other federal, state or local government-issued identification documents that require individuals to demonstrate lawful immigration status in order to obtain the document. But another problem with the Arizona law is that local law enforcement officers may not be sufficiently familiar with the broad range of documentation that a foreign national can show to prove that he or she is authorized to remain or work in the United States. For example, the foreign passport and I-94 document: Would Arizona law enforcement officers be familiar enough with those documents to recognize that they are sufficient to evidence immigration status?
Editor: What does the federal government claim is different from federal authorities asking for the equivalent of the Arizona cop's "license, registration and insurance, please?"
Patrick: If the Arizona police officer does not suspect that somebody has violated the law, then the officer does not have the legal right to say, "show me your papers." Your question was pointed not to identification but to a legality of status in the United States. The police cannot directly question an individual based on their suspected immigration status alone.
Editor: What is the current status of the law on periodic traffic stops?
Patrick: Until now, if someone fails to produce identification pursuant to a periodic traffic stop and that person is then taken in, the individual is run through government databases that might recognize that he or she is not lawfully present in the U.S. However, if it's simply a routine traffic stop and the individual produces a license and registration, then the officer will run that information through a database checking for crimes - not immigration status. Arizona's new scheme would give the police officer, in the course of a lawful stop, the discretion to determine whether or not there is a reasonable suspicion regarding the person's ability to be in the U.S. lawfully, and if that suspicion exists, the officer will go beyond the traffic stop to determine the legality of the person's immigration status.
Editor: And is that where a concern arises?
Patrick: The Governor of Arizona has gone to great lengths to articulate, as the Arizona State Legislature did in its amendment to S.B. 1070, that the statute is not a discriminatory law, and that police officers cannot and will not stop people because of the color of their skin, ethnicity or language. Realistically speaking, however, what does the police officer or border patrol person really rely on in determining whether an individual appears to be someone that might be an illegal alien, so that the officer may question that person? If it turns out that the person is undocumented, it's going to be difficult for a complainant to say that reasonable suspicion wasn't there. But if the person turns out to be a citizen of the United States and was stopped, the U.S.-citizen complainant could have a good case that the law creates a situation where abuses of officer discretion are being committed.
Politically, I don't think you can find an American that isn't frustrated with how our country has, either by choice, fear of the political consequences, or indifference, neglected to deal with this topic. The President appears to appreciate the public's frustration, which may be why just a few weeks ago he gave a speech at American University about how this is a difficult topic that Congress cannot afford to shy away from. Former President George W. Bush - to his credit - did attempt to address the issue, albeit unsuccessfully, due largely to the political volatility and divisive effects of the issue. President Bush's effort was thwarted not necessarily by the radical left or the unions or by immigration rights advocates but to a great extent by his own party. So it's quite clear to me that comprehensive immigration reform cannot pass without some bipartisan cooperation. Given the state of the present Congress, I don't know how anyone can say that there is even a fair chance that reform will be passed prior to November 2010.
Editor: That's where we left off the last time we spoke, that 2010 for reasons that are not necessarily admirable is too soon. Is the federal suit against Arizona that has pushed it onto the front pages a good idea?
Patrick: I know we're here to talk about immigration more then politics, but it is impossible to discuss immigration given the current political landscape without acknowledging the extreme degree to which political factors affect prospects for reform. I think there are a lot of people in the President's own party that are not happy about President Obama's pushing for immigration reform at this moment, and there are those in the Republican party who are themselves in a difficult situation over the issue of immigration reform. Take Senator McCain, for example, who is facing a difficult battle in his home state, who has had to take extremely conservative - some would say, opposing - positions which are in stark contrast with the political stances that he's taken on the issue in years past. I'm not sure what went on inside the White House or inside the Department of Justice when they were discussing the political consequences of bringing this action, but politically it's hard to see how it benefits the Democrats to bring this action, except to the extent Hispanic voters support such action.
Morowitz: The President has already been confronted by a number of Democratic governors who disagreed with the timing of the federal lawsuit against Arizona in part for reasons of politics. But in terms of the lawsuit, the situation reached a boiling point with the passage of the Arizona law and with other states already announcing their intention to create laws that are similar to S.B. 1070.
Editor: In your professional opinion do you think that the federal lawsuit will be successful?
Patrick: My view is that it should be successful, with the caveat that I was on record saying that the challenge against the E-Verify law was going to be successful and it wasn't, either at the District Court level or in the Ninth Circuit.
Now that the appeal has been accepted by the Supreme Court, we'll see whether the Court will reverse the Ninth Circuit, or affirm the Ninth Circuit and allow the E-Verify law to mandate employer participation and responsibility.
Morowitz: I think there is a stronger possibility that Arizona's S.B. 1070 will be struck down by the Supreme Court. In the E-Verify case, both the district court and the court of appeals relied on an exception in federal immigration law for business licensing regulation to the general preemption against states enforcing immigration laws at the worksite. There is no such exception for the kind of enforcement described in S.B. 1070.
Then again, would the Court even agree to hear the E-verify challenge if it were simply going to affirm the Ninth Circuit's decision?
Patrick: Except to maybe make a strong statement about state's rights.
Editor: Far be it from me to suggest that there are political considerations when the Court decides what cases to accept and not accept, but it certainly offers an opportunity for many opinions concurring in part, dissenting in part, etc. if it does in fact go to a decision.
Patrick: If I were the Attorney General, I'd much rather be before the Supreme Court on S.B. 1070 than on the E-verify law, because of the business and licensing exemptions which were successful before the Ninth Circuit and the District Court on the issue of E-verify.
Editor: Do you believe this litigation will cause Congress to take a closer look at the whole question of immigration and what to do about a growing number of people?
Patrick: It's my personal hope that District Court Judge Susan Bolton will issue a decision clearly highlighting the difficulties that S.B. 1070 will create for the state and the burden that the Arizona law will place on law-abiding members of society. I keep hoping that the judge will make a strong and substantive statement here, but I think that's unlikely, even if she rules in favor of the federal government.
Morowitz: S.B. 1070 certainly increases the pressure on Congress to act. It would be difficult to imagine that Congress could defer immigration reform for much longer, especially when other state legislatures are actively considering laws similar to Arizona's.
Patrick: Political pressures, public uproar over inaction, or other compelling factors will someday force Congress to address the reality of the 13 million people who are physically present in the U.S. but who are not authorized to be here and who must live "in the shadows." Many of these individuals have come to the U.S. to take work that is very often dangerous or physically taxing, often for compensation that is far below the minimum wage. In addition, these people are all too often put in disadvantageous and even abused positions by employers who exploit their undocumented status, knowing that the immigrant worker will not go to the authorities to report the abuse for fear that he or she will be worse off for "complaining." But America's fairly enthusiastic support of Arizona's law S.B. 1070, and the fact that half the States have already said that they will follow Arizona's lead, shows that America is not in a mood to "forgive and forget." I don't want to speak for America, but my sense is that there is a large groundswell of support for what Senators Schumer and Graham have recently put forward: that if these 13 million people are going to be regularized, they will have to acknowledge the wrongdoing that they have committed, pay back taxes, and stay out of legal trouble - and must go to the back of the line.
Published August 2, 2010.
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