All elected officials in Arizona swear to uphold the Constitution of the United States. This oath of office combined with the Supremacy Clause of the Constitution leaves no doubt in my mind that my first duty and first loyalty is to the United States Constitution, particularly if there is any conflict with the Constitution and Laws of the State of Arizona, to which I owe an equal but subordinate duty and loyalty.

 

A serious dispute has arisen about the constitutionality of SB 1070, the recently enacted law which creates new state criminal offenses in the field of illegal immigration and requires local law enforcement to give priority to these crimes. The crimes are in an area of serious and primary federal concern: immigration. One of the disputed issues is whether the federal constitution and federally enacted immigration laws allow Arizona or any state to pass a law like SB 1070. If this area has been “preempted” by federal law, then it would be unconstitutional to enforce SB 1070, which goes into effect on July 29, 2010. All those in law enforcement including police, sheriffs, county attorneys and city prosecutors need to know the outcome of this dispute soon.

 

I welcome the filing of the federal lawsuit which is designed to get a quick answer from the court on this issue. In doing so I neither applaud nor criticize the current federal approach on immigration. The common agreement is that current federal law and policy on immigration needs to change. No one can deny that Arizona has borne a particular burden caused by the slowness of federal authorities, including Congress, to address this issue.

 

Nevertheless, I believe the quickest way to get the preemption issue resolved is by the federal lawsuit. The pending private lawsuits (in one of which I am a named party) have standing and ripeness issues that might prevent a court from addressing the merits of the preemption issue and other significant issues before the effective date of SB 1070.

 

County attorneys are not required to defend the constitutionality of laws passed by the legislature. We are, however, bound by our oath of office to enforce those laws—unless they violate the United States Constitution or the Arizona Constitution. Based on the legal research I have undertaken and that of others which I have reviewed, I have very serious doubts about the constitutionality of SB 1070. A prompt resolution of the preemption issue, and other constitutional issues, will relieve me and all other Arizona law enforcement officials of the dilemma we will face when—and if---the law goes into effect and we must consider our duties under our oath of office.

 

James P. Walsh
Pinal County Attorney
Florence, Arizona