By Howard Fischer
Capitol Media Services
PHOENIX -- The American Civil Liberties Union is dropping its bid to block enforcement of a new law that lets state and local police arrest some border crossers.
Attorney John Mitchell said his organization and the Florence Immigrants and Refugee Rights Project that it represents still believe that a key provision of Proposition 314, approved by voters in 2024, is unconstitutional. He said the federal government has the exclusive right to enforce federal immigration laws.
But Mitchell said there is no way to pursue the case -- at least right now -- because there's no evidence anyone actually has been picked up under the new law which actually took effect just a month ago.
"And that means it's not the right time to continue litigating,'' he said.
What that means going forward, Mitchell said, is monitoring police activity to see if anyone is charged with breaking the law. Only at that point, he said, will there be someone with the legal standing to go back to federal court and ask a judge to not just delay enforcement but, eventually, have the statute declared unconstitutional.
The decision was not entirely unexpected.
It comes after U.S. District Court Judge Mike Liburdi rejected a bid last month by the ACLU to enjoin enforcement of Prop. 314 while its legality is litigated.
The judge said there appear to be questions of how the state can enforce its law -- including a provision allowing state judges to deport migrants -- without running afoul of the fact that immigration issues are pretty much the sole purview of the federal government.
But Liburdi said any question about the legality of Proposition 314 need to be raised by someone who actually is affected by it. And he said the Florence Project, which provides legal services to migrants, has not show any immediate harm that would give it standing to sue.
Now, without any actually detained, Mitchell said the best course of action is to wait and see whether any law enforcement agency will try to enforce it.
At the heart of the debate is Prop. 314.
It was approved in 2024 even as TV airwaves were flooded with videos of people crossing the border through gaps in fences and other isolated spots.
The Biden administration had made a conscious decision to adopt a policy of "catch and release,'' with entrants processed by Customs and Border Protection and then released with notices to appear in immigration court. That led to arguments by Republican legislators that the state needed to take action on its own.
When Hobbs vetoed their plan, GOP leaders had it put on the 2024 ballot.
Prop. 314 contains several provisions, including requiring state and local agencies providing taxpayer-funded benefits to verify immigration status and making it a felony to submit false documents to employers. There even is a section that enhances the penalty for selling fentanyl if if results in the death of another.
The heart of it, however, is what's known as Section 5.
It makes it a misdemeanor for anyone who is not a citizen to enter Arizona from a foreign country at other than a port of entry. As a state crime, that empowers state and local police to enforce it.
But it also allows a judge to give the arrested person the option to be deported, under court order, rather than face the criminal charges.
That language is a virtual carbon copy of SB 4, a 2023 Texas statute that was immediately challenged by the Biden administration.
So, to avoid a separate lawsuit, GOP lawmakers here inserted a provision to say that Prop 314 could not take effect until at least 60 days after federal courts ruled that the Texas law is enforceable. That action occurred on May 14, meaning the Arizona law kicked in nearly a month ago.
The ACLU, on behalf of the Florence Project, filed suit asking Liburdi to bar enforcement. They argued the law a clear violation of the exclusive authority of the federal government to regulate immigration.
But Liburdi, in a ruling last month, said all that is, for the moment, legally irrelevant.
He said only someone actually harmed by the law has the right to go to court to seek to have it declared unconstitutional. And, with no one actually arrested, Liburdi said, that leaves the ACLU without a case.
Mitchell acknowledged that leaves his organization's challenge in legal limbo.
"The trajectory of this litigation has always depended on when and how the state chooses to enforce Section 5,'' he said.
"In the first month that Section 5 has become fully enforceable, we've just seen none,'' Mitchell said. "So, from a litigation standpoint, it means our best strategy is to hold off until we get evidence of that enforcement.''
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