- The Washington Times - Wednesday, December 8, 2004

A temporary restraining order blocking implementation of a Nov. 2 initiative passed in Arizona that would bar illegal aliens from receiving public benefitsis scheduled for arguments before a federal judge in Tucson on Dec. 22.

U.S. District Judge David C. Bury, who issued the restraining order last month, will decide at that time whether to allow Arizona Gov. Janet Napolitano to certify the election results and implement the new law or block its enforcement until its constitutionality can be fully litigated — a process that could take months, if not longer.

“This court finds itself in an extremely undesirable position,” Judge Bury said in his original order. “On the one hand, a majority of Arizona voters cast their ballots in favor of Proposition 200, and this court is loath to disregard their decision. On the other hand, this court is obligated to uphold the Constitution of the United States, even when to do so stands in opposition to popular opinion.”

The initiative passed with 56 percent of the vote and requires state and local government employees to verify the immigration status of those seeking public benefits and to report to federal immigration authorities any applicant in violation of U.S. immigration law. It also subjects the employees to criminal prosecution for failing to report illegal aliens.

The restraining order had been sought in a lawsuit filed in U.S. District Court in Tucson by a coalition of lawyers representing several civil rights and immigration organizations, led by the Los Angeles-based Mexican American Legal Defense and Education Fund (MALDEF).

In the lawsuit, MALDEF says that unless the initiative is overturned by the court, it would “jeopardize the health and well-being of families and children who depend on public benefits for their basic necessities.” The suit says the new law would “cut off all state services, including education, medical care and police and fire services, to all individuals who are unable to immediately provide adequate proof of their U.S. citizenship or residence.

“Arizona’s new voter-registration law, moreover, will disenfranchise thousands of voters across the state. Its cumbersome and costly identification requirements will deny voters who cannot afford the new identification documents the right to vote and will depress already low voter turnout,” it says.

Judge Bury, appointed by President Bush in 2001, said the lawsuit raised “serious questions” on whether Proposition 200 was pre-empted by federal law and whether it was constitutional.

“Additionally,” he said, “the balance of hardships tips sharply in favor of plaintiffs. It seems likely that if Proposition 200 were to become law, it would have a dramatic chilling effect upon undocumented aliens who would otherwise be eligible for public benefits under federal law.

“For instance, an undocumented alien who is eligible for public benefits might refrain from availing himself of those benefits out of fear of the implications of Proposition 200,” he said.

Judge Bury noted in the order, however, that his granting of the restraining order merely delayed implementation of the initiative and should not be “construed in any way as a comment on the merits or legality” of the proposition.

“This court simply lacks sufficient information at this time to reach any such conclusion,” he said. “Rather, granting the [temporary restraining order (TRO)] will maintain the status quo and grant the parties time to brief the important legal issues and permit this court the opportunity to give this matter the consideration it deserves,” he said.

“If this court denied the TRO, plaintiffs would serve defendants with their motion for preliminary injunction … and there would be a trial. In the meantime, Proposition 200 would become law and it would be implemented, but under the specter that it might be preliminarily enjoined sometime in the future. Such uncertainty would benefit no one,” he said.

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