Immigration Law
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1. Background

• On July 22, 2010 Judge Susan Bolton heard motions in two cases relating to Arizona's S.B. 1070. These were the last scheduled hearings before the date for entry into force of S.B. 1070.
• Legal proceedings involve application of rules, not unlike college and professional sports. Each has a rulebook. Only one side can win. Each side stands in the way of the other. A referee, umpire, or judge rules on matters as they arise. Each ruling favors one side or the other, even if it is not the favorite team of the person making the ruling. It is hard to follow what is going on unless one is familiar with the rules, how they are applied, and the likely effect of a penalty or foul on the overall conduct of the game.
• I attended the hearings and wrote this report as someone who is licensed to practice law in Arizona, practices in the federal courts, and works daily with federal immigration law. I hope it sheds light on the proceedings and dispells confusion, fears and misunderstandings. I hope it also may contribute to the historical record of the proceedings.

2. Approach to the Courthouse

Exiting the parking garage and crossing 4th Avenue led directly to a gauntlet of pro- and anti- S.B. 1070 demonstrators on the sidewalk in front of the courthouse, with signs, flags, and angry faces. Police watched warily from not far away. It was barely 9:00 AM and the temperature was fast approaching 90 degrees. The sky was overcast in one corner, threatening afternoon thunderstorms. An anti-S.B. 1070 demonstrator was chanting a refrain through a bull horn that after the second or third chorus became quickly annoying, like a car alarm going off down the block that refuses to stop.

Entry into the courthouse itself was preceded by airport-like screening, including removal of electronic devices from carrying cases. The courthouse is a spacious glass structure of giantic proportions, with a look and feel reminscent of a cruise ship. The hearing was held in the special proceedings courtroom not far from the entrance and one floor above it. It frames a giantic staircase topped by a suspended catwalk that leads to the courtroom entrance and another walkway at right angles beyond. It in turn leads to restrooms, and further down the corridor to a glass-enclosed restaurant with sweeping street views of Phoenix and simple but ample fare within.

A marshall directed the crowd informatively as one entered the vestibule that led to the courtroom. The courtroom itself was full, though we had arrived forty-five minutes early, and one had to climb a very long flight of stairs to a semi-circular gallery that ringed the courtroom below. There was no seating available at all in the gallery and one had to peer over the balcony to view the proceedings below. It was very warm. The overhead view of the tops of the heads of the lawyers and clerks was not terribly interesting. The Jury Assembly room live feed in a room directly below the courtroom was a much better option. It was also cooler, and people could come and go as they pleased.

3. Morning Session - Friendly House

The judge entered the courtroom and invited the assemblage to be seated at 10 AM sharp. Each judge infuses his or her courtroom with a certain atmosphere. Judge Bolton's courtroom was non-threatening. It was a place to resolve legal problems and treat people justly under law. No nonsense, but not particularly stern.

The morning session followed a rigorous schedule that had been set earlier by court order because of the multiplicity of parties and motions, and the judge stuck to it. She allowed one counsel to cede remaining time to another counsel on the same side of the arguments. The hearing began and ended promptly. If the judge interrupted counsel with questions, which she did often, she also tried to be mindful of their allotted time, occasionally reminding lawyers of the time they had left when she concluded a round of questioning. In turn, I think she expected the lawyers to help her explore all sides of a problem, even if they were not disinterested in the outcome.

The morning case was Friendly House v. Whiting, No. 10-1061 (D. Ariz. filed May 17, 2010).

The judge obviously very well prepared, perhaps better than even than most of the lawyers. This was refreshingly unusual.

The Plaintiffs were a group of individuals and public service organizations, represented by lawyers from the A.C.L.U. and various other immigrant and civil rights groups.

One defendant was Sheriff Joe Arapaio, whose extreme anti-immigration views and tough talk and methods have made him a villain/hero in Arizona, depending on who is asked. Sometime around the first S.B. 1070 hearing held July 15, 2010, he scrambled a SWAT team, invited TV reporters to accompany them on a desert raid, perched a 50 caliber machine on top of an armored vehicle, and publicly promised any would-be illegals that the gun would be used to defend Arizonans.

The other defendant was the Governor of the Arizona and the State. Neither the Governor nor the Sheriff personally appeared at the morning hearing.

The defendants' motion to dismiss the case on technical grounds was heard first. The attorney for the State and Governor of Arizona started by reassuring the judge that S.B. 1070 differed little from prior practice and any holes would be filled in good faith by honest law enforcement officials.

The judge interrupted him to ask about the mandatory detention provision of S.B. 1070. It requires officers to detain persons until immigration status is determined. She was trying to estimate the practical impact of such a provision. In a dialogue she wondered aloud about the size of the group affected, indicating her decision might depend in part on the answer. She did briefly mention duration of detention as another factor in her decision, but did not dwell on it, suggesting she was possibly fine-tuning a hand-crafted methodology by which to assess claims of likelihood of success on the merits and urgent need for a preliminary injunction.

The attorney for the State and Governor of Arizona tried to reassure the judge that what would happen upon a stop was the same as happened pre-S.B. 1070. The driver's license would be checked to see if there were outstanding warrants, if the license itself was valid, and only if there were no license presented at all or something came back fishy would be any further action taken, such as inquiring into alienage, all of which occurred without S.B. 1070, thus implying there was no need for federal concern. Without crossing acceptable lines of chivalry and courtroom etiquette, Defendants' attorney seemed to present the image of a jovial, almost avuncular friend of the Court, suggestive of a possible social relationship in addition to the professional one, or a long time professional association, exchanging quips with the judge. At one point he characterized Plaintiff's argument against mandatory detention as one that was based on a hypothetical threat to melt down ICE, to which the judge asked increduously a few minutes later after reading the simultaneous transcription on her computer screen: "Did you actually say MELT down ICE?" The attorney for the State and Governor of Arizona, in an "aw shucks" manner, replied that the play on words was only an attempt to see if the judge was really listening, a comment she took good-naturedly, while some in attendance chuckled.

The judge had no questions for the lawyer for Sheriff Joe Arapaio, whose discourse had a distinctively populist flavor. If she had a reaction to it, she did not allow it to show.

When the defendants were finished, the attorney for the Plaintiffs advanced to podium. She was a well-spoken young woman who was very deferential to the judge and to her co-counsel. She carefully explained to the judge why the complaint filed by the plaintiffs should not be dismissed. On a motion to dismiss, the pleadings simply had to articulate a basis in fact for the suit, and did not need to prove them. She went through the complaint carefully to establish the various elements the complaint alleged and why they should survive a motion to dismiss. The judge posed no questions to this part of the presentation, but did interrupt her before long.

The judge asked her the flip side of the question she had posed to the attorney for the State and Governor of Arizona. The judge asked if it really made a difference to the case if a New Mexico driver license was not accorded equal immigration credibility in Arizona under S.B. 1070. Whether or not a person had a New Mexico or other license, the stop in Arizona itself was effected for reasons of driving behavior, which was a state concern and existed independently of the type of license that the driver possessed. The judge seemed to be teasing out a distinction between what was hopelessly tangled up with immigration status and what could be left undisturbed as purely a matter of state law. I did not think she ever got a satisfactory answer to the question.

The judge did win a concession from the Plaintiffs' lawyer that sections 7-9 of S.B. 1070 were not really essential to the Plaintiffs' case, which had been unclear from the pleadings. Section 7 dealt with an amendment to existing law to specifically define the defense of entrapment in a civil proceeding for revocation of a business license of an employer of illegal workers. Section 8 only specified a record retention requirement for e-verify purposes. Section 9 related to impounding a vehicle used for illegally transporting aliens.

Click here to access in a new window the text of the 2010 Arizona immigration law, SB 1070 as amended.

The judge seemed to be separating the wheat from the chaff, in order to stay focused on the challenges that she did have judicial power to remedy, and drop ones that made no difference or were beyond her judicial reach, and risked simply distracting efforts at effective decision-making. The lawyer for the Plaintiffs willingly obliged, though as it turns out later, this process of separating out issues may have had darkly substantial implications for the entire collection of S.B. 1070 cases beyond simple housekeeping.

The attorney for the State and Governor of Arizona rose to reply. The judge interrupted his argument to pursue the issue of mandatory detention pending immigration verification once again, from yet another angle. She took the example of an asylum application where there was no immigration paperwork in the possession of the alien. The attorney for the State and Governor of Arizona replied that this person was "with authorization" to be in the U.S. and therefore not in violation of S.B. 1070's criminal provision requiring federal registration as an alien. The judge replied that irrespectively, knowledge of the true facts could come too late in the proceedings to do much good. The person could be detained for a long time or even convicted before the fact of legal authorization to be in the U.S. could be obtained.

The attorney also remarked that every alien except those illegals who hadn't been apprehended yet had an A number that could be run through the ICE system quickly to verify status.

The portion of the hearing on the motion to dismiss finished and the judge then moved to the Plaintiffs' motion for a preliminary injunction. Again, time limits were applied to the lawyers' arguments.

The Plaintiffs went first, since they had brought the injunction motion. The Plaintiffs were represented by a different lawyer, a young man who was throroughly prepared and articulate. He presented himself as someone who was there to help the judge reach the right decision, which she seemed to appreciate. Their working relationship was good.

The judge had apparently thought the injunction request over carefully prior to the hearing, including its form, and in the opening sentences of the Plaintiffs' argument broke in to advance the notion that the injunction request was too broadly framed. She observed that she lacked authority to enjoin the whole bill as enacted, which was a collection of directives, some of which only amended prior law in very minor ways. S.B. 1070 was not a single law, but rather added to or amended a number of laws, and it included a very standard clause to the effect that if one provision was invalid, it was to be severed from the rest, and the rest would be enforced without it. The judge believed that this provision prevented her from considering the law as a whole but required considering each section independently, and the provisions within a section, to determine what was left standing at the end of the day. In accordance with this approach, the judge also expressed the view that the purpose section, articulating a policy of attrition of illegal aliens in the state through enforcment efforts, technically could not violate federal rights, no matter how one felt about it personally. There was nothing to enjoin. It was simply guidance to the Courts as to legislative purpose.

The judge encouraged Plaintiffs' lawyer to choose which parts of the law he really wanted her to enjoin from among provisions that could be considered harmless to his case. He seemed to think the request was reasonable. He agreed that Section 2, 3, 5, 6 and 10 of S.B. 1070 were at issue. In response to the judge's follow-up questions, he also agreed that Section 10 was subsumed for purposes of the motion within clause 5, second part.

(Clause 2 required mandatory detention following a stop or arrest when there was reasonable suspicion of unlawful presence. It also included a provision to penalize an agency that refused to enforce the immigration laws to the fullest extent, and created a private right of actions for citizens to enforce it. Clause 3 enacted the misdemeanor crime of unlawful immigration presence under state law. Clause 5 dealt with stopping in traffic to hire unauthorized workers and solicitation for such employment. In its second part, it created the crimes of unlawful concealment, harboring and transporation of illegals while committing a crime. Section 10 dealt with fines handed over to the Gang Intelligence Team from legal cases against a state agency that was found guilty of refusing to enforce the federal immigration laws to the fullest extent.)

Click here to access in a new window the text of the 2010 Arizona immigration law, SB 1070 as amended.

The list of pertinent provisions excluded Section 4 in addition to 7-9 previously agreed to by Plaintiffs' co-counsel. Section 4 provided that stops for traffic violations in connection with alien smuggling offenses were authorized. It did not change prior law.

Turning to the list of pared-down sections for the preliminary injunction motion, the Plaintiffs' lawyer stated that section 2 (b) mandates detention pending immigration verification. He said S.B. 1070 created an "improper classification scheme inconsistent with federal law" when it referred to unlawful status and asserted that mandatory detention on such a basis exceeds the federal immigration law, since the detention provision was not also authorized by Congress. According to the AZ Post training materials for Arizona law enforcement officers, he said, no person escaped application of the provision, even citizens. Because someone from New Mexico driving on a New Mexico license was affected, the law interfered with a constitutional right to travel. Citing cases, he argued that there is no free floating right of a state to enforce federal immigration law. It had to be tied to specific federal statute, and considering several such statutes in succession, concluded that none applied.

The judge interrupted and playing devil's advocate, observed that Section 2(b) is not an arrest provision, implying that detention was a lesser evil constitutionally. She echoed the Defendants' contention that law enforcement officers were simply holding suspected persons for ICE, which was the second part of Section 2(b). If ICE did not want them, they would be released, to which the Plaintiffs' lawyer pointed out that notwithstanding a pass from ICE, the affected person could still be arrested, held by the state, and convicted under the criminal trespass provisions of Section 3, which also exceeded criminal provisions of federal law.

The Plaintiffs' attorney pointed out that the burden of proving constitutionality was on the State, not the other way around. The right to travel was implicated for persons in New Mexico, Washington State, and Utah. Section 2(b) had the effect of curtailing trips to Arizona.

Turning to Section 2(H) which created a private right of action to sue an agency for failing to enforce federal immigration law to the fullest extent, the judge asked Plaintiffs' counsel how that provision was any business of the federal courts. Arizona could create a private right of action under Arizona law as it saw fit. The Plaintiffs' lawyer responded that the provision had to be viewed in relationship to the other sections of the law as reinforcing them, but conceded under continuous skillful questioning by the judge that if the other sections did not exist or were each held unconstitutional separately, by itself, this single provision alone was not objectionable independently on federal grounds.

Changing topics to Section 3, which criminalizes unlawful presence, Plaintiffs' counsel argued it was an attempted end-run around federal processes. Interlocking with Section 2(b)'s provision on mandatory detention pending an immigration check, if ICE releases for lack of interest, the state can bring a criminal charge for expired immigration documents, which has absolutely no federal analogue and therefore does not simply mirror federal law as the Defendants claimed..

Turning to Section 5, relating to obstructing traffic in order to hire unauthorized workers and soliciting work unlawfully, Plaintiffs' counsel argued that S.B. 1070 chose to criminalize conduct that the federal immigration laws deliberately chose not to criminalize, creating a pre-emption issue. The judge disagreed. Federal statutes had expressly pre-empted certain items from employment sanctions against employers. This list of excluded items did not mention workers. It was silent. It is true that Congress did not also impose criminal sanctions upon illegal workers, but Congressional silence did not require a conclusion that sanctions against workers were off-limits to the State. Plaintiffs' counsel responded that Congress had imposed civil sanctions in four separate instances against workers. Given there were civil but no federal criminal sanctions, the State's criminal sanctions created a conflict with federal law, leading to conflicts pre-emption.

Plaintiffs had wanted to reserve some time for rebuttal, and it was being used up. The attorney sat down. The attorney for the State and the Governor came to the podium for his response.

The judge quickly returned to the issue of mandatory detention in Section 2(b). She was concerned that the text of the law could be read literally to apply to all persons, even U.S. citizens, and not just to aliens who were reasonably suspected of being illegals. That would require officers to detain everyone who was stopped until an immigration check was performed, whether or not they were reasonably suspected of being unlawfully present. Everyone was being referred to ICE to see if it wanted them. If they lacked required documentation, they had to be held until the checks were done. Some people were not in the ICE system. Detention could last for a long time. Some people had immigration applications in process or were readying to file. Detention was intrusive. Even the Arizona POST training materials for S.B. 1070 indicated that the trainers did not know what this provison meant. The law could overwhelm ICE and cause further delays. Mesa and Maricopa County in fact do run everyone through the system, according to declarations in the file.

The Defendants' attorney replied that if the term was unclear, the judge could clarify it. The federal court had a duty to construe statutes in order to avoid claims of unconstitutionality. He argued that it also was not illegal to run everyone through ICE. As for Mesa and Maricopa County, they run everyone through who is booked into jail, not just detained. He stated that basing detention upon booking in jail had been the true intent of the drafters of S.B. 1070, who had perhaps not successfully translated the notion into legal language, but suggested the judge could rectify it.

As for section 3's criminalization of unlawful presence (trespass), this simply mirrors federal law, argued the Defendants' lawyer. The judge interrupted to point out that an old Supreme Court case made it clear that federal registration of aliens, which Section 3 relied upon, was a matter pre-empted by federal law. The Defendants' lawyer argued that the case she was referring to did not go that far but had simply outlawed a separate state alien registration law. S.B. 1070 was different because it punished violations of the federal law without changing the federal law registration system by creating a new one.

The Defendants' lawyer observed frankly with resignation that he saw that he had not yet convinced the judge on the point. The judge did not comment.

Moving on to the employment provisions of Section 5, the attorney for the State and the Governor argued that employment was a matter of legitimate state concern. The judge did not pose any questions to him about this provision.

But with regard to the harboring, concealing and transporting provision of Section 5, the judge said she was puzzled by language in the law allowing a warrantless arrest based solely upon probable cause to believe a removable offense had occurred. Defense counsel stated that it was intended to allow state officers to hold an alien for ICE based upon a report that the alien had committed a crime in another country. The judge asked where probable cause to arrest existed in the example given. The attorney replied that this provision just authorized the state officers to drive the suspected person over to ICE so that ICE could start removal against the person, per Department of Justice rules, citing cases in support of lawfulness of the provision, and referring to an example of an illegal alien from El Salvador who was convicted of murder in El Salvador and had been released in this country several times before finally being referred to ICE. The judge indicated she thought a warrant would be required if it involved a foreign crime, and invited the lawyer to change his example to a crime committed another state. He retracted the foreign crime example.

Moving to the First Amendment claims of the Plaintiffs, defense counsel remarked, as his alloted time was expiring, that it was a broad category of claims that did not merit relief.

Plaintiffs' counsel rose to the podium for his reply. He too did not have much time left.

He turned to the First Amendment claims just mentioned by his opponent. He tied them to the employment provisions in Section 5. Someone seeking a job uses speech, which has First Amendment protections like advertising, which is also a form of commercial speech. The judge informed him of a very recent Ninth Circuit Court of Appeals case that seemed on point and asked him, even though it was so new that the final order (mandate) had not yet issued, whether he wanted to pursue an employment claim that it foreclosed. He replied that he was aware of the case and did indeed intend to withdraw the claim. "Good answer," the judge commented appreciatively.

Returning to the First Amendment claim, the judge inquired of the lawyer whether there ever could be a First Amendment claim to seek illegal employment. As for alleged pre-emption by federal inaction to punish illegal workers, what about the presumption against pre-emption made clear in recent cases, which seemed to undermine a claim of likely success on the merits at the conclusion of the case on the seeking employment claims.

In the remaining moments, the judge asked the lawyer to consider Section 6's warrantless arrest provision. Plaintiffs' lawyer agreed that it was improper and pointed out that the State's request to the judge to rewrite the law acknowledged the shortcomings. It also did not deal with exigent circumstances, which was another category relevant to warrantless arrests. It was flawed.

The hearing ended exactly at noon.

3. Afternoon Session - USA v. AZ

The hearing began promptly at 1:30 PM in United States v. State of Arizona, No. 10-01413 (D. Ariz. filed July 6, 2010). The Governor was present. The judge greeted her.

The judge noted that there were only two parties and one motion, unlike the morning session. She had not entered an order scheduling time. She gave each side time to argue. The Goverment had an hour for opening argument.

The attorney representing the Government was a seasoned, articulate, well-versed lawyer with a prepared presentation from which he seemed disinclined to depart. The reason became clearer as the hearing progressed. Though a polished speaker, a certain nervousness betrayed his exterior calm. Each time he left the podium, all his papers and books crashed to the courtroom floor.

He made clear at the outset that the Government was not pursuing an injunction with regard to Section 4 (allowing officers to stop a vehicle for civil driving violations in connection with illegal smuggling of aliens), or Section 5 (employment provisions outlawing obstructing traffic or soliciting unauthorized employment), parts a and b. All other issues were pre-empted by IRCA, the comprehensive federal immigration laws.

He began with the foreign policy interests of the United States, which were a kind of wrapper around immigration. We need to protect citizens abroad against retaliation for laws involving immigration that anger foreign sovereigns. The federal goverment has treaties and laws of Congress. It is charged with executing the laws. The ultimate responsibility lies with the United States. Arizona declared its own policy of "attrition through enforcement."

The judge interrupted and asked why couldn't Arizona be an inhospitable as it wished. The judge followed with a question how could she legally enjoin a statement of purpose.

The reason, replied the attorney, was that the purpose infused the rest of the act and was a reminder to state officials. It drove the enforcement.

With regard to Section 3, the registration provision, it was pre-empted as a direct intrusion on federal powers, was precluded by a U.S. Supreme Court case, and the sanctions conflicted with federal enforcement discretion.

The judge interrupted and stated she was not interested in hearing about Section 3. She wanted to discuss Sections 2, 5 and 6.

The government's attorney apologized and indicated he felt he needed to cover Section 3 first. The judge's attitude towards him cooled immediately. "It's your hour," she said noncomittally. Some in attendance laughed but it did not look like a laughing matter to me. He had succeeded in ticking the judge off. He was not working with her. He was talking at her.

He continued with his prepared theme. The federal government had discretionary responsibilities. The state can assist the federal government but cannot make its own law. The United States is the sovereign being assisted. The entire act as a unit needed to be stricken down to preserve federal powers and prevent other acts with other variations from being enacted by other states.

The judge interjected. She directed him to be specific. The tone was becoming less cordial.

He proceeded to Section 2(b). The judge said she understood the dangers of mandatory pre-emption, but the Government had restricted its challenge to pre-emption. How did pre-emption apply? Because of the government's overriding responsibilities for immigration the lawyer responded. It conflicted with them.

The judge pressed on. How was detention different from the State arresting someone and taking them to jail and booking them, she persisted. The state officers can call the Government center and ask about immigration holds for the booked arrestee. The Government has a mandatory duty to respond under federal law. Here the state is proposing a mandatory duty to make the request in all cases. How was that change in the relationship pre-empted?

The detaining of people for immigration (Section 2(b) is like arresting them for immigration purposes (Section 3), the Government's lawyer responded. That was the basis for pre-emption.

The judge turned his attention to Section 5, with regard to the remaining part he had not exempted from his motion at the start of the argument. He said IRCA pre-empted any state action that ignored the federal exclusive responsibilities for immigration. So long as the state criminal violation sprang out of a responsibility given to the federal government through the comprehensive legislative scheme, the connection between the state law and the federal discretionary powers mandated pre-emption.

With regard to transporation, concealment and harboring, also in section 5, the judge told him flatly she did not buy the argument that state crimes were pre-empted simply because immigration was a federal responsibility. For one thing a person charged under the law for illegal transporting, concealing or harboring could be a U.S. citizen. Why should federal pre-emption apply?

The remaining time for the Government was reserved.

The attorney for the State and Governor came to the podium. He inquired if he needed to repeat any of the arguments he had made during the morning session. The judge told him her memory was clear. He did not need to repeat anything said previously. He said he didn't need all of his time.

The judge asked him about the Government's argument for pre-emption based on foreign relations with other nations. It was no secret that plenty of people were upset with Arizona. The defense lawyer for the State and Governor responded that the Government had no caselaw to back up its position.

The lawyer then asked the judge if he could use some of the remaining time to clarify some matters from the morning session. She told him to go ahead. He said he wanted another chance to convince her about the legality of Section 3. He said ICE knows about asylum applicants. They all get an A number. They can be checked by ICE quickly in the system. The judge replied that the U.S. Supreme court opinion resolved all issues on Section 3. Because it was based on federal registration, it was pre-empted.

The attorney then launched into a strongly worded attack on the opposition to the mandatory detention provision, 2 (b), which he said is required by federal law, 8 U.S.C. Section 1644. (It states: "Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States.") He charged the Government with hiding information about illegal status to protect what he called "sanctuary cities". He said it was the problem with facial challenges.

The lawyer then reported that he had some new information to give the Court about Section 6, relating to warrantless arrests based on probable cause to believe a removable offense had occurred. The probable cause could be based on pooled information between the various law enforcement agencies involved. The judge responded by revealing her thoughts. To her removability was a complex determination that could not be made by officers from the state or even ICE itself. It was a determination that had be made by an Immigration Judge after hearings.

Section 6 doesn't talk about calling ICE or anyone else to make a determination of probable cause, she continued. The training materials from the State don't add anything either.

"But at least you got back Section 4" (relating to authorizing traffic stops to be used in alien smuggling cases), she consoled the lawyer for the state teasingly.

The lawyer for the state sat down. He looked tired. He was not a young man and it had been a long day.

The Government's attorney came back to the podium. He made the point that the entire law had to be viewed as a unified scheme and enjoined as such to prevent other laws with differing variations from springing up around the country and threatening the power of the central government over immigration. The implication of what he was saying, though he did not state it that way, was that the judge's piecemeal approach, while it could result in invalidating certain sections, could ultimately become just a roadmap forArizona and other states on how to do it right in the future. The core responsibilities of the federal government over immigration were at stake. It was no different than federal taxation or federal regulation over drugs.

The judge was not buying it. She seemed astonished that the government was making such a broad pre-emption argument. To her the cases were clear that pre-emption in the field of immigration was very narrow. With regard to section 2, she said detention was not directly related to federal powers over removal. It was just a check. If the check ended badly for the person who was being checked, then it became a federal removal issue. But at that point the state's involvement had ended. There might be other issues with mandatory detention, but federal pre-emption was not one of them.

The hearing ended at approximately 3 PM. All matters were taken under advisement.

4. Exiting the Courthouse

The federal marshalls inside the building warned persons leaving that tear gas had been used by the police outside against demonstrators and directed us away from West Washington. The bull horn chant was still going, apparently uninterrupted for the entire day. The remaining people in front of the courthouse looked very determined to have their say, reminiscent of days from the 1960's. There was a flashpoint sense in the air. We detoured to cross 4th avenue. The police and demonstrators were squared off in the middle of West Washington, which was blocked off from traffic. We drove back to Tucson.

We had the rush hour traffic to beat.