Gov. Jan Brewer is asking the nation's high court to let it enforce a 2010 law making it a crime to knowingly transport or harbor those in the country illegally.
Legal papers filed Monday on the governor's behalf at the Supreme Court contend there is nothing improper about the state having its own laws aimed at controlling immigration. John Bouma, Brewer's chief legal counsel, said the fact that there are federal laws criminalizing the same conduct does not preempt state action.
If nothing else, Bouma told the justices the injunction blocking enforcement of the law while its legality is debated is improper, as there has been no showing anyone is at risk of imminent harm.
But Linton Joaquin of the National Immigration Law Center said there is no reason for the high court to intervene. He said lower courts clearly were correct in concluding that Arizona cannot have its own laws aimed at illegal immigration.
The law in question makes it illegal for someone to transport, conceal, harbor or shield anyone unlawfully present in this country or “encourage or induce the alien to come to or live in Arizona.”
It is part of SB 1070, a broader package of measures designed to give police more power to question and detain those they believe are in the country illegally. Several provisions already have been voided by courts, including three by the Supreme Court itself, as preempted by federal law.
Bouma acknowledged there already are federal laws against harboring or transporting, but he said that does not block a parallel Arizona law.
“States have inherent, plenary police power and are not dependent on an invitation from Congress to enact legislation designed to protect the health, safety, and welfare of its citizens,” he wrote to the court. In fact, Bouma argued, Congress “express invited” state and local enforcement of federal law violations.
Linton Joaquin, attorney for the National Immigration Law Center, pointed out that argument did not wash with the 9th U.S. Circuit Court of Appeals.
Judge Richard Paez, writing for the majority, noted Arizona was not asking to have state and local police turn over violators to federal court but instead setting up its own system for prosecuting violators. He said letting Arizona enforce its own immigration laws would let the state undermine federal policies, including Deferred Action for Childhood Arrivals.
Paez pointed out that program allows certain people here illegally who arrived in this country as children and meet other conditions to remain and work. At the same time, Brewer already has deemed those in the program “unlawfully present aliens,” a category she uses to deny them the ability to get a state driver's license.
The judge said if Arizona were allowed to enforce this law “it would authorize the (state) prosecution of those who transport or provide shelter to these young people despite the fact that the federal government has chosen to allow them to stay, and work, in the country.”
Paez also said the law is so badly written as to be “unintelligible.” Bouma, however, disagrees with that contention.
One thing possibly working against Bouma's effort at this point is that the rulings so far have been only on the injunction barring enforcement of the law while its legality continues to be litigated in federal court in Phoenix. That allows the high court to rebuff his request since the any ruling on the law itself is likely to be appealed.