A federal judge peppered attorneys fighting over the legality of Arizona's new immigration law with questions about their assumptions of what the law means.
At the first of two hearings Thursday, Omar Jadwat, representing the American Civil Liberties Union, said Congress never made it a crime for those in this country illegally to seek casual employment. He told U.S. District Court Judge Susan Bolton that shows federal lawmakers wanted to preempt a provision of SB 1070 making it a violation of state law for undocumented workers to try to get work.
But Bolton told Jadwat he is making a presumption about what federal lawmakers intended by their silence.
"Or did they just not deal with it?'' she asked. The judge cited other sections of federal immigration laws which contain specific provisions barring actions by state and local governments.
"We know Congress knows how to preempt expressly,'' the judge said.
But Bolton, going through questions she had about the law point by point, did not spare John Bouma, the attorney for Gov. Jan Brewer, from her inquisitions.
One section of the law that appeared to trouble the judge says that everyone arrested for any reason cannot be released until their immigration status is checked with federal officials.
She pointed out that police "arrest'' people all the time for minor crimes, issue them a citation and let them go about their business. Bolton said this provision of SB 1070 would appear to require police to hold people for some extra period of time -- one attorney said it can take an average of 88 minutes to get a response from Immigration and Customs Enforcement -- beyond what is necessary to cite and release.
Bouma said lawmakers meant to apply that only to people who actually are "booked'' into jail.
"That's what they should have said then,'' Bolton responded. She said the law, if allowed to take effect, could result in detaining tens of thousands of people "who otherwise could be cited and released.''
At a second hearing, this one on a challenge to the law brought by the Obama administration, federal solicitor Edwin Kneedler took aim at another section of SB 1070. It requires police to check the immigration status of those they already have stopped if they reasonably suspect that person is an illegal immigrant.
Kneedler said that will result in more queries and more ``hits'' on illegal immigrants, interfering with the exclusive right of Immigration and Customs Enforcement to prioritize which illegal immigrants to go after.
``How is that a preemption issue?'' the judge asked. She said even if state and local police do locate illegal immigrants, ICE can simply respond, ``we don't want them.''
The questioning is significant because it shows the judge is examining each provision to see if she has legal grounds to issue an injunction barring any or all of them from taking effect as scheduled on July 29.
As part of that determination, the judge needs to make at least a preliminary decision of whether each section is constitutional. If she believes some are not legal -- and if she determines letting the law take effect would result in sufficient harm to some -- then she will place those provisions on "hold'' until there can be a full hearing on their legality.
Bolton gave no indication when she will rule and if that will come before the effective date of the law. But she made it clear she will not invalidate the entire law.
She said some sections of SB 1070 do not directly relate to the questioning or detention of suspected illegal immigrants by state and local police.
The judge also noted a federal appeals court recently upheld ordinances of a California community restricting where day laborers can solicit employment. Bolton said that likely means there's nothing wrong with similar language in SB 1070 making it illegal to stop on public streets to hire temporary workers or try to seek employment in those situations.
But Bolton had serious questions about other provisions.
One of the more controversial makes it a state crime for a non-citizen not to carry federally required identification documents.
Foes of the law say that language effectively allows the state to imprison people whose only offense is being an illegal immigrant. Kneedler said that not only is beyond the state's power but that it actually exceeds federal laws which, absent more, do not make being in this country without documentation a crime.
After the hearing, Bouma acknowledged the judge may void that provision. "That wouldn't necessarily affect either the purpose or the effect of the statute in the long run,'' he said.
Brewer, who attended the hearing on the Obama administration challenge, sidestepped questions about whether the judge's questions suggest the law is poorly worded.
"Judge Bolton asked very good questions,'' the governor said. "I believe that they were well intended to make all of us understand and to listen to exactly what she was saying.''
Constitutional issues aside, Bolton also focused on that issue of harm, a key element in any decision about granting an injunction. Bouma said the claims presented by challengers about things like racial profiling are speculative at best.
"People talk about what they fear will happen,'' he said.
But Nina Perales, an attorney for the Mexican American Legal Defense and Educational Fund, said there are real dangers to some, such as residents of New Mexico.
SB 1070 lists the documents someone can produce to prove legal presence in this country and avoid further questioning by state or local police. That includes an Arizona driver's license and the licenses from any other state which require motorists to show they have a right to be in this country.
But New Mexico and some other states do not have that requirement, making those licenses useless in helping those stopped prove, if questioned by Arizona police, they are legal residents.
Bouma countered there are harms to Arizonans if Bolton delays implementation of the law. They relate to what Brewer and sponsors of the legislation say has been the failure of the federal government to secure the border.
As proof he cited the erected in Pinal County by the Bureau of Land Management saying, "Danger -- Public Warning -- Travel Not Recommended.'' They say this is an "active drug and human smuggling area'' and that visitors "may encounter armed criminals and smuggling vehicles traveling at high rates of speed.''
"There's no way an injunction can be in the public interest,'' Bouma told the judge.
Kneedler said there are real harms of SB 1070 to the foreign policy interests of the United States.
He said other countries are interested in how their citizens are treated in this country which, in turn, affects how U.S. citizens are treated elsewhere.
Kneedler said there already has been fallout from SB 1070 even though it hasn't yet taken effect. He said officials from other countries are saying they may not proceed with certain trade or cooperation agreements with the United States.