05/11/2010 08:15 am ET Updated May 25, 2011

Arizona's Immigration Statute: Another Devil in the Details

In all the debate surrounding Arizona's controversial new immigration statute, one provision has escaped the scrutiny it deserves. The law's aggressive citizen-suit provision (Section 2.G) authorizes lawsuits by "any state resident" against any official or agency of the state "or its political subdivisions" that adopts any policy "that limits or restricts the enforcement of federal immigration laws... to less than the full extent permitted by federal law [sic]." It further provides that agencies or officials found to have limited or restricted federal immigration laws "shall" be fined on a daily basis, and that the resident who brings suit shall be entitled to recover the costs incurred in bringing the lawsuit, including attorney's fees.

In other contexts, citizen-suit and attorney-fee provisions can promote the enforcement of federal law. For example, some federal environmental statutes authorize citizen suits to remedy violations of environmental laws, and sometimes allow winning plaintiffs to recover attorney's fees. The core idea is to encourage litigation which otherwise may not be brought often enough. Given that the benefits of environmental enforcement extend far beyond the parties who would bring litigation, which moreover can make it difficult for would-be environmental plaintiffs to gain standing to bring suit, citizen-suit provisions encourage socially desirable litigation. For another example, several federal civil rights statutes authorize attorney's fees for parties who vindicate their rights under the civil rights laws, though such cases may be brought only by those whose rights have been violated, not by just any self-appointed citizen.

But something about the Arizona provision is amiss. Make that several things.

First, the Supremacy Clause of the U.S. Constitution already prohibits state and local governments from enacting policies that impede federal law. In that light, Section 2.G's implicit prohibition on policies restricting the enforcement of federal law adds nothing. Second, unlike other citizen-suit and attorney-fee provisions, Section 2.G encourages lawsuits not for actual violations of federal law, but for the adoption of any policy that limits "the enforcement" of federal law "to less than the full extent permitted by federal law." (Warning: definitions of key statutory terms unclear). Further, the provision requires courts to penalize state agencies and official on a daily basis starting the day a lawsuit is filed, not the day it is won. In other words, if a state agency or official adopts a policy that it believes in good faith does not restrict or limit full enforcement of federal immigration laws, but a court later disagrees, the penalty is computed from the day the lawsuit first began. A predictable result of this provision is to force any defendant to settle quickly, as the risk of paying a daily penalty following litigation that could last months or even years will be high. Finally, speaking of good faith, state officials evidently have no immunity from suit even when they act in good faith, a stark contrast to other areas of the law where government officials face the possibility of liability.

So just what policies restricting the full enforcement of federal immigration laws by state agencies or officials did the drafters of Arizona's new statute seek to eliminate? The legislative record is sparse. But it is easy to imagine benign policies by "political subdivisions" of the state that could now become targets for stiff penalties and attorney-fee litigation: A county hospital or health clinic with a policy of treating emergency room patients without verifying their immigration status could be targeted. Local law enforcement agencies that encourage crime victims and witnesses to make reports without having to show their legal status presumably could be sued. School districts that provide educational programs for children of undocumented parents might fall within the act's scope. In all such cases, any self-appointed Arizona resident could sue a local agency, under the threat of attorney's fees and per diem penalties from the date a law suit is filed, on the grounds that such policies somehow limit the enforcement of federal immigration laws "to less than the full extent."

Arizona's provision inviting lawsuits against state and local agencies and officials scores points for creativity. It is also misguided. State entities such as public hospitals, police departments, and school districts should not have to defend sensible policies that advance their core missions against lawsuits by anti-immigration groups, on the far-fetched grounds that these agencies restrict full enforcement of federal immigration laws. Citizen suits and attorney's fees can be important policy tools. But they are tools properly used to demand that state and local governments do their jobs, not to punish them for the same.