9th Circuit: Arizona cannot enforce key parts of SB 1070 - East Valley Tribune: Arizona

9th Circuit: Arizona cannot enforce key parts of SB 1070

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Posted: Monday, April 11, 2011 10:42 am | Updated: 5:23 pm, Mon Apr 11, 2011.

Arizona cannot begin enforcing key parts of last year’s immigration law.

In a split decision Monday, the 9th Circuit Court of Appeals concluded there was sufficient evidence to believe that provisions of SB 1070 are an unconstitutional infringement on the exclusive power of the federal government to regulate immigration. Judge Richard Paez, writing for the majority, also said such a conclusion is supported by ``the threat of 50 states layering their own immigration enforcement rules on top of the Immigration and Naturalization Act.’’

They also said U.S. District Court Judge Susan Bolton was correct in concluding that letting Arizona enforce the law while its legality is being challenged would cause harm to the interests of the United States. Paez noted that argument was not only advanced by the Obama administration, which is challenging the law, but also by officials from more than a half dozen foreign governments.

That is an important conclusion: Courts must weigh the ``balance of hardships’’ that each side would face when enjoining enforcement of a law while its legality is debated.

But the majority’s conclusion drew derision from Judge Carlos Bea. While agreeing much of the Arizona law probably is unconstitutional, he said there is no reason that states cannot, in some circumstances, help enforce federal laws.

And Bea specifically brushed aside the concerns of Mexico and other countries.

``A foreign nation may not cause a state law to be pre-empted simply by complaining about the law’s effects on foreign relations generally,’’ he wrote. ``We do not grant other nations’ foreign ministries a ‘heckler’s veto.’ “

Senate President Russell Pearce, R-Mesa, who crafted the legislation, promised an appeal to the U.S. Supreme Court.

``There has never been a pre-emption against states enforcing these laws,’’ he told Capitol Media Services. But Pearce said the decision is not a surprise.

``We expected -- almost could predict -- such a thing for the liberal makeup of the 9th Circuit, the most overturned court in the nation,’’ he said. But Pearce, who was not permitted to play a role in the defense of the law, also suggested the result might have been different if he had been involved.

Instead, the defense was left pretty much to Gov. Jan Brewer and a team of private attorneys she hired.

``I don’t want to criticize their team,’’ Pearce said. ``But there are certainly things, being the author of this and being engaged in this battle for over 25 years ... arguments I thought should have been made.’’

That won’t occur again: Bolton earlier this month gave Pearce permission to be part of the defense in the future.

Brewer, in a prepared statement, said she remains ``steadfast in my belief that Arizona and other states have a sovereign right and obligation to protect their citizens and enforce immigration law in accordance with federal statute.’’

Monday’s ruling bars enforcement of several sections of the law, including:

• Requiring a police officer to make a reasonable attempt to check the immigration status of those they have stopped.

• Forbidding police from releasing anyone they have arrested until that person’s immigration status is determined.

• Making it a violation of Arizona law for anyone not a citizen to fail to carry federally issued documentation.

• Allowing police to make warrantless arrests if there is a belief the person has committed an offense that allows them to be removed from the United States.

• Creating a new state crime for trying to secure work while not a legal resident.

On that last point, Paez noted that Congress chose not to make it a crime for an illegal immigrant to seek work. He said that shows it was never the intent of federal lawmakers to let states impose their own harsher penalties.

``How do they know Congress didn’t intend that?’’ Pearce responded.

``They intended for (companies) not to employ these folks,’’ he said. ``So it’s a natural connection, a nexus, for that issue.’’

Paez said there is a role for states in enforcing federal immigration law. But he said it’s not as broad as Pearce contends.

He cited laws that allow states to enter into agreement with federal agencies. But in those cases, Paez wrote, an attorney general must approve each individual state officer who is permitted to enforce that law but which functions each person is permitted to enforce.

Similarly, Paez rejected the state’s argument that it has independent authority to enforce and punish violations of federal immigration registration rules.

Bea, in his dissent, said he saw nothing wrong with the part of the law requiring law enforcement officers to question people about their immigration status.

He also suggested his two colleagues who found that section of the statute flawed were playing games with words, even quoting from ``Alice in Wonderland.’’

`` ‘The question is,’ said Alice, ‘whether you can make words mean so many different things,’ ” Bea wrote.

Technically speaking, Monday’s ruling does not determine the ultimate outcome of the challenge to the law brought by the Obama administration and others. It deals only with whether the law can be enforced while that case makes its way through the legal system.

But the conclusion by the appellate judges that SB 1070 is pre-empted by federal law, unless overturned, will make it next to impossible for Arizona to ever have the challenges overturned.

Monday’s decision could have implications far beyond Arizona. Several other states have enacted or are crafting laws modeled after SB 1070. If the Supreme Court agrees with the 9th Circuit’s conclusions, it likely would slow those other efforts, though it will take years for a full legal review of the law to make it through the legal system.

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