Federal appellate judges indicated Monday they might let Arizona start enforcing one of the most controversial sections of its new law aimed at illegal immigrants.
Members of the three-judge panel of the 9th Circuit Court of Appeals pointed out that the Obama administration is making a "facial" challenge to SB 1070. That requires the federal government to prove it is impossible to enforce the disputed provisions of the statute in any constitutional way.
But Judge Carlos Bea noted that one disputed provision says that when police have stopped someone they are required, when practicable, to make an effort to determine their immigration status with federal agencies if there is "reasonable suspicion" they are in this country illegally. Bea questioned whether that, by itself, is unconstitutional.
More to the point, Bea told Edwin Kneedler, the deputy federal solicitor general, he does not see how that is preempted by federal law.
Kneedler conceded there is nothing wrong with police officers, on their own, making the checks.
"Our position is not that they're not authorized to" check with Immigration and Customs Enforcement, he said. "Our objection is that the state statute mandates it."
Bea was not impressed.
"It's up to the state how they want to use their people," the judge responded.
Judge John Noonan added that if Congress doesn't want states requiring their officers to make such mandatory checks, there is a simple remedy: It can direct ICE to stop responding to the inquiries.
The questions by the judges indicate they are giving serious consideration to arguments by John Bouma, attorney for Gov. Jan Brewer, that U.S. District Court Judge Susan Bolton was wrong in July when she blocked the state from enforcing this provision of SB 1070.
Bolton concluded that the U.S. Department of Justice, which challenged the law, is likely to prevail when the case finally makes its way through the legal system. That would require a finding by the courts there is no way the law can be enforced in a constitutional manner.
But the judges appeared less swayed by other assertions by Bouma that Arizona is legally entitled to make it a violation of state law for anyone in this country illegally to seek work in Arizona, another section of SB 1070 that Bolton placed on hold.
"That is clearly consistent with congressional intent," Bouma argued. "Congress has made it clear that they're not supposed to be here."
Bea, however, pointed out federal law only makes it a crime to hire an illegal immigrant, not to be one working here. He said what Arizona is trying to do does not mirror federal law but imposes entirely new - and probably impermissible - state penalties.
For the same reason, the appellate judges also brushed aside arguments by Bouma defending another section of SB 1070 which says police can charge illegal immigrants with breaking state law because they are not carrying certain federal documents.
Brewer, who attended the hearing along with her in-house legal counsel, a deputy chief of staff and a press aide, said after the hearing SB 1070 is necessary because the federal government is not doing its job.
She acknowledged under questioning that the Obama administration is devoting more staff and resources to apprehending and deporting illegal immigrants.
"But it certainly isn't enough," she said. "We are seeing people still afraid down in the southern border to feel safe in their homes, which is something that we will not and cannot tolerate."
Bouma made some of the same arguments in court.
"Once an immigrant, an illegal alien, is in the United States, the chances of removal are so low that, basically, crossing the border is the same as crossing the finish line," he said.
That rhetoric did not impress Bea.
"Mr. Bouma, let's forget about what arguments you might address to a jury or to a legislature," he said.
Democrat Terry Goddard, Brewer's foe in today's election, blasted the governor for making the trip, saying her presence is neither legally necessary nor relevant.
"She is trying to convince people that she is protecting the border," Goddard said in a statement Monday. "But SB 1070 has no impact on border crime."
But Brewer said the legal challenge by the Obama administration names not only the state but also her.
"Most defendants show up in court when they're sued," she said. "And I'm here to represent the state of Arizona."
The appellate judges gave no indication when they will rule. Brewer said if the appellate court upholds any part of Bolton's injunction she will seek review by the U.S. Supreme Court.
Sen. Russell Pearce, R-Mesa, who crafted the law and also attended Monday's hearing, said he believes the nation's high court will side with Arizona on at least a 5-4 margin.
"This is an issue of a sovereign state doing what a sovereign state ought to do, and that's protecting its citizens from those who break the law," he said. Pearce also said the Obama administration is wrong in saying the state is trying to intrude into the exclusive purview of the federal government.
"We're not regulating, we're enforcing," he said.
In issuing the injunction in July, Bolton also said it appeared that letting Arizona enforce its own immigration laws would case "irreparable harm" to the foreign policy interests of the United States. That is based on claims by the Obama administration that Mexico and other countries will be less willing to work cooperatively with the U.S. if they believe their citizens are being harassed in Arizona.
Kneedler said there also is a fear that the safety of U.S. citizens abroad could be compromised if other countries retaliate because of SB 1070.
Bea, however, questioned that assertion. He noted that New Jersey has, by executive order, required its police officers to check the immigration status of at least some of those they stop, with a similar rule in Rhode Island.
"Has that led to our foreign relations being deteriorated?" the judge asked.
"There have been concerns addressed in recent years," Kneedler responded, though not necessarily because of what those states have done. Kneedler said, though, the Arizona law "has brought to the fore a broader concern" by foreign governments.
Slabside posted at 12:35 pm on Mon, Nov 1, 2010.
Finally, a ray of intelligence.
Geepers posted at 1:27 pm on Mon, Nov 1, 2010.
It almost makes me believe these judges may be impostors, this is so unlike the 9th Circuit Court to uphold the rights of the majority.
beachdude posted at 6:17 pm on Mon, Nov 1, 2010.
Obama said last week on UNIVISION INTERVIEW
"If Latinos sit out the election instead of, 'we're going to punish our enemies and we're going to reward our friends who stand with us on issues that are important to us' -- if they don't see that kind of upsurge in voting in this election, then I think it's going to be harder,"
So the patriots of AZ who want the law enforced as it relates to illegal aliens and immigration are enemies. You know what to AZ patriots take your state and country back and send these Obama Liberal Democrats into early retirement.
Slabside posted at 6:37 pm on Mon, Nov 1, 2010.
Wow Dale, are we no longer friends? If we are no longer friends I don't know if I could bear it! Actually I have no use for cut and paste hacks like yourself that could care less about the immigration crisis and focuses on the bleeding heart left issues.[yawn]
constans posted at 7:40 pm on Mon, Nov 1, 2010.
The Nazis are out in force. The problem here is that the portion of the law that is most egregious is the one being determined to be legal--the part that promotes racial profiling. 3/4 of all Latinos in Arizona are legal residents, as some people are liable to forget. If white people were subjected to the constant "suspicion" that they were illegal, and didn't carry the "proper papers" with them at all times, they'd be crying that this is a Nazi state. But that's exactly the state they want Latinos to live in--regardless of their legal status.
Slabside posted at 12:48 am on Tue, Nov 2, 2010.
forked, you want the law to be racial profiling so bad you can taste it. Sorry charlie but no go. You attack posters like myself because it's all you have and I would not be a bit surprised if dale is one of your alias'. You leftists are in for a real letdown Tuesday... have many boxes of tissues ready my friend.[wink]
wdgnas posted at 5:43 am on Tue, Nov 2, 2010.
if SB1070 becomes law, and if i am stopped for a traffic violation and my immigration status is not verified will the goldwater institute file a lawsuit for me against the police department for not upholding the law?
rrjenn posted at 8:16 am on Tue, Nov 2, 2010.
An interesting article from the San Bernardino Sun News: http://www.sbsun.com/news/ci_16478933#ixzz144AmMHFD
A new study shows Latinos have soured considerably on illegal immigration in the last three years.
In 2007, 50 percent of Latinos surveyed told the Pew Hispanic Center that the growing number of illegal immigrants was a positive force for the existing Latino population. In a Pew survey released Thursday, that number had plummeted to 29 percent.
Thirty-one percent said illegal immigration had a negative effect, and 20percent said it had no effect.
While the wording of the question changed slightly in 2010 – striking the phrase “growing number” to reflect studies that show illegal immigration declining – several local advocates on different sides of the issue called the change in perception unsurprising.
Those Inland Empire voices diverged significantly, however, when it came to explaining the shift and what it means for immigration policy.
Raymond Herrera, president and founder of a Claremont-based group called We the People, California’s Crusader, said political will has been shifting since 2004.
Herrera said that’s when activists like him began loudly calling for reform, slowly building what he said is a national consensus that illegal immigrants should be deported.
Looks like mestizo citizens are starting to understand just what the economic burden these illegals represent.
Hotcopone posted at 11:30 am on Tue, Nov 2, 2010.
slabside: I'm in agreement with you. It's pretty darn simple, the 9th circuit court of appeals is the most overturned court in the country and these liberals who feel they are owed everything, including free health care, food, housing all at the hard working tax paying people.
You're right, today they will need some tissues. Skip all the long rhetoric BS and the copy and pasting. Facts are facts and Illegal is illegal. I'm all for ANYONE and support them wholeheartedly who come to this country legally.
All of a sudden now we have liberals worrying about the costs to enforce this law. You should be worrying about the trillions of dollars that your Liberal Democratic leaders in DC are throwing away and bankrupting this country and should be enforcing all of the Federal Laws and not just picking and choosing so they can get re elected.
Cut all the BS and get a grip. People hate Joe Arpaio because he hunts down illegals and drops numbers for the Democrats. He's not racial profiling if you are in a heavily Hispanic dominated community. If he stops a white guy there, now that would profiling. If it's all hispanics and you are looking for motor vehicle violations, you're sure gonna be stopping Hispanics.
So now you may say why don't you go into other towns w/o heavily populated ethnic groups. If he did he wouldn't find any illegals now would he? We know that the majority of illegals in AZ are Hispanic so that's where you go. If you think that' s profiling then what do you want him to do?
Go to N. Scottsdale and drive around the million dollar neighborhoods looking for illegals there?
You liberals are getting a wake up call this election and it won't stop this election either. I hope all the liberals enjoyed their 2 years of glory and ruining our Country in such a short time.
I hear all about how it's all Bush's fault. Where the Democrats seem to forget is they have had control since 06. When did our economy start tanking?? Uh huh you guessed it.
We all need to get back to basics. If you want free child care, ask a neighbor or a relative. Not our Gov't and that goes for free everything else.
When I was a child there wasn't anything free (late 50's and early 60's) Now everything is free to the people who don't want to work. We did have welfare but it was for a total of two years. That should be enough time to go out and find a job and get you back on track and it didn't include anyone else other than US CITIZENS.
Masterrogue666 posted at 11:46 am on Tue, Nov 2, 2010.
Constans: What to you call those persons that ARE of HISPANIC ancestry, the AGREE with SB1070? Traitors?
They exist. Are they also "Nazis"?
Slabside posted at 12:13 pm on Tue, Nov 2, 2010.
Forkedtongued1 says, "Sorry for misjudging you." Yes forked... you misjudge most things in your posts. My posts concerning you are spot on though. As for the article, my first post said it all. The appeals court is beginning to show some intelligence by considering the approval of 1070. Was that too complicated for you skippy?[wink]
rrjenn posted at 4:22 pm on Tue, Nov 2, 2010.
Masterrogue666, there are more Latinos who are against illegal immigration than are for it. They can see that the illegals are making it harder for them. http://www.usatoday.com/news/nation/2010-10-28-illegal-immigrants-hispanics_N.htm
So why does Fork and his sock puppet, Dale, keep fighting the inevitable? 9th seems a bit smarter than Bolton, but the real test comes when the supreme court hears arguments. Man this thing is really snowballing. Don't ya just love it [beam]
Slabside posted at 7:22 pm on Tue, Nov 2, 2010.
forked's comments have been removed! LOL!!![beam]
Masterrogue666 posted at 6:52 am on Thu, Nov 4, 2010.
Slabside: Didn't forkedlift1 say something about staying on the article, yet his comment is removed?
LOL
Masterrogue666 posted at 6:54 am on Thu, Nov 4, 2010.
rrjenn: Very true. In fact, I'd bet that the only Hispanics that want ILLEGAL IMMIGRATION has family members that are in fact ILLEGALLY here. That, or an extremely high percentage do....
rrjenn posted at 2:33 pm on Fri, Nov 5, 2010.
This country needs more laws like SB1070. A new study released by the non-partisan Pew Hispanic Center shows immigrant workers continue to gain jobs during the current jobs depression, even though U.S.-born workers are continuing to lose jobs. Many jobless Americans attribute their current situations to the influx of illegal aliens. Javier Gonzalez, an unemployed American from San Leandro, Calif., said:
I think that illegal immigrants do take jobs away from native workers, especially out here in the Bay Area. I'm unemployed, but I shouldn't have to be. I'm from the area. I was born here and I can't get a job here.
Gonzalez has spent his adult life working labor-intensive jobs -- the so-called "jobs American's won't do" -- but he has found those jobs impossible to come by as more and more immigrants enter the country.
Sadly, the results of the Pew Hispanic study back up Gonzalez's assertions. Since June 2009, the end of the "Great Recession," foreign-born workers (both legal and illegal) have gained 656,000 jobs. At the same time, 1.2 million native-born workers have lost jobs during this period of recovery.
The study also points out that Hispanic Americans, such as Javier Gonzalez, are losing out on jobs to non-native Hispanic workers. Hispanic immigrants gained nearly 100,000 construction jobs from 2009 to 2010, but native-born Hispanic Americans lost 133,000 of those very same jobs.
wdgnas posted at 6:12 am on Sat, Nov 6, 2010.
forkedlift1: Assuming you have it and provide it, your immigration status is not supposed to be questioned, and that would be the end of it.
never leave home without it. maybe i had a drivers license from another state and used it to get my arizona driver's license... because i tan easily, i have been mistaken for an illegal alien more than once.