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During a two-hour hearing, Judge Michael Liburdi said there appear to be questions of how the state can enforce its law — including a provision allowing state judges to order migrants deported — without running afoul of the fact that immigration issues are the purview of the federal government.

But the judge said it appears any such questions about the legality of Proposition 314 need to be raised by someone actually affected by it.

He said there is no evidence anyone has, in fact, been detained or deported under the new Arizona law, which became enforceable on July 14.

Friday's order is not the last word. Liburdi will give the Florence Immigrant Rights and Refugee Project another chance, after further briefings and arguments, to convince him that not only is the law damaging its work representing migrants, but that it is an illegal intrusion into federal immigration laws.

The Florence Project, represented by the American Civil Liberties Union, has an uphill fight, however.

Republican lawmakers put Proposition 314 on the 2024 ballot. The measure, which voters approved by a 2-1 margin, says state and local police can arrest those who enter the United States in Arizona at other than a port of entry. It requires that an officer witness the illegal crossing, have video evidence, or some other "constitutionally sufficient indicia of probable cause,'' a phrase not defined in the law.

Violation is a Class 1 misdemeanor, subject to six months in jail.

But the new law is structured in a way designed not to incarcerate but to deport: Anyone accused of violating the state law could have the charges dismissed by simply agreeing to leave the country, a provision enforced by language requiring police to take that person to the border or turn them over to federal immigration officials.

All that is an illegal intrusion on federal law, argued ACLU attorney Kathryn Huddleston.

But Liburdi said that is irrelevant, at least at this point.

He said a bid to overturn a lawfully enacted state law can be brought only by someone who can show imminent and irreparable harm, and, to this point, there is no evidence anyone has been arrested or deported under it.

‘The will of a supermajority of voters’

Huddleston argued there is another victim. She said the Florence Project is affected because the law's effects would overly tax the organization, which now has to deal with two separate laws, federal and state, and people arrested under each violation.

But when pressed for dollars and cents figures, she could not produce any. Instead, she talked about staff time as well as the cost of driving to different courts.

Liburdi was not impressed — and not convinced any of that gave the Florence Project the right to challenge the new law.

"You could get into court because you have to buy an extra tank of gas?'' the judge asked, pointing out that the measure the organization wants to sideline was approved by two-thirds of voters.

"So is it really the law that the state of Arizona ... is at the mercy of the Florence Immigration Project's budget when it wants to make changes that might enforce immigration law?'' Liburdi asked.

The judge also made it clear he has to give consideration to why GOP lawmakers put the measure on the ballot and why voters approved it.

"You had an administration that let the border remain wide open for four years,'' Liburdi said, saying some estimates put the number who crossed illegally during the Biden administration at 20 million.

"Unaccompanied minors, potential terrorists, people who were not vetted flooded across the border,'' the judge continued. "And you're arguing the people of the state of Arizona can't react to that because a Florence Immigration Project staff attorney might have to put an extra tank of gas in their car to visit a client?''

Huddleston said it's more complex than that. She said that when the state opened an entirely new front for going after migrants, her organization is "perceptibly impaired'' and has standing to sue because its core mission is aiding migrants.

Liburdi again wasn't convinced, saying if he allowed the Florence Project to proceed based on financial consideration, that would let any organization "get into court to potentially overturn the will of a supermajority of voters of the state of Arizona.

"Some people might find that preposterous,'' he said.

None of the issue of who has the right to sue addresses the underlying legal question of whether allowing state and local police to arrest border crossers — and judges to have them deported — infringes on federal purview about immigration.

This isn't Arizona's first attempt to insert itself into such matters.

In 2010, state lawmakers approved SB 1070, which contained multiple provisions designed to give state and local authorities the power to detain people suspected of being here without legal immigration status. It ended with the U.S. Supreme Court striking down key provisions, including the charging of migrants with a state crime for seeking work in Arizona without legal presence in the country and failing to carry federally issued immigration cards; and allowing warrantless arrests if there was "probable cause'' a person committed an offense that made them removable from the country under federal law.

Oscar Roman, another ACLU attorney, told Liburdi that Proposition 314's provisions fit into the same category of what is beyond the state's purview.

But attorney Beau Roysden, representing Arizona Senate President Warren Petersen and House Speaker Steve Montenegro, argued there is no conflict.

He said it would be one thing if state and local police were trying to arrest someone who had entered the country through a port of entry. At that point, Roysden said, the person would have interacted with federal immigration officials.

But in the cases targeted by the new state law, he said, someone has sneaked over the border to avoid federal officials. All the state law does, Roysden said, is mirror federal law that makes such entry illegal.

Judge notes rights of asylum seekers  

Liburdi, however, questioned whether the law is as clear as that.

He said Proposition 314 has the potential to allow arrests and deportations of those who might be entitled to seek asylum. Yet the way the law is worded, if someone is arrested and refuses to self-deport, denying themselves the right to pursue asylum, they are subject to being found guilty of a Class 4 felony, which can bring three years in state prison.

That, however, is an issue Liburdi does not have to delve into in saying the Florence Project cannot pursue its lawsuit. But that could change if someone is arrested under the new law and has a clear right to challenge it.

Petersen, who was in court for Friday's hearing, said he still believes the law can be enforced, legally,  without changes. Still, he acknowledged the wording may need to be tweaked.

"Any time you're implementing a law for the first time, you've got questions on how it's going to be enforced,'' said the Gilbert Republican, who also is the Republican nominee for state attorney general in the November election.

"We adjust laws all the time,'' he said. "We make changes to laws all the time.''

Petersen acknowledged that would be far from a simple process for this measure.

Anything approved by voters cannot be repealed by state lawmakers, and can be adjusted only if the changes "further the purpose'' of the original law — and then only with the votes of three-fourths of the House and the Senate.