State officials will ask the U.S. Supreme Court to let Arizona begin enforcing the immigration law enacted last year.
Attorney General Tom Horne said Monday sending the question to the nation’s high court will be the quickest way to get the issue heard -- and, he believes, the injunction lifted.
A three-judge panel of the 9th U.S. Circuit Court of Appeals last month upheld a lower court decision that key sections of the law are likely illegal and should be placed on “hold.’’ The alternative was to seek review by the full appellate court.
Going directly to the nation’s high court, however, does not mean quick resolution. Horne said he does not expect a decision from the justices until the fall whether to even hear the state’s appeal. And even if they do, it could be next spring until they hear arguments and rule.
SB 1070, approved last year, contains multiple provisions designed to give police more power to question and detain suspected illegal immigrants.
The Obama administration sued, charging the legislation runs afoul of the exclusive right of the federal government to regulate immigration. Attorneys for the Department of Justice said letting Arizona have its own laws also interferes with the ability of the federal government to manage relations with other countries.
A trial judge agreed, enjoining the state from enforcing key provisions. That includes a requirement for police to check the immigration status of those they have stopped if there is reason to believe they are in this country illegally.
Last month, a panel of the 9th Circuit, in a 2-1 ruling, left the injunction in place.
In seeking high court intervention to let the statute be enforced, Horne acknowledged that the state needs first to prove the law is likely constitutional.
In issuing injunctions, courts also weigh the “balance of hardships’’ among the parties. In this case, the state now needs to show that its hardships from not being able to enforce the law outweigh the hardships placed on the federal government.
In its ruling last month, the majority of the 9th Circuit accepted the arguments of the Obama administration that allowing Arizona to pursue its own immigration policies undermines the ability of the federal government to set and conduct foreign relations. But state Senate President Russell Pearce said that ignored the other side of the equation.
“Rob Krentz was murdered during the debate of 1070,’’ he said, referring to the Douglas rancher killed last year, a case that has never been solved. “That’s not a real hardship I guess.’’
Pearce also said many police officers have been killed by illegal immigrants. And he said there also are financial issues, “$2.7 billion to educate, medicate and incarcerate those that are in this country illegally, just in Arizona.’’
Attorney General Tom Horne agreed.
“The hardship to Arizona is something like 400,000 people are crossing the border illegally in the Tucson sector every year.”
Horne also said he will argue that the provisions in SB 1070 are not preempted by federal law.
For example, one section of the state law requires police, when they have stopped someone, to try to determine whether that person is in this country legally if there is a reasonable suspicion they are not. But Horne said Congress specifically required Immigration and Customs Enforcement to respond to law enforcement inquiries about the legal status of those they have stopped.
“I don’t see any hardship there at all,’’ he said. “I see a great hardship to continue to not be able to help Border Patrol.’’
Horne also took a specific swipe at one part of the 9th Circuit ruling dealing with the question of how the Arizona law affects foreign policy. He pointed out that the majority, in siding with the Obama administration, cited the concerns of officials of several foreign governments who filed legal briefs urging the appellate court to bar Arizona from enforcing the law.
“We think it’s an outrage that the 9th Circuit would let its decision be dictated by other countries rather than by United States constitutional law,’’ he said.
Horne is not alone in that concern.
“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,’’ appellate Judge Carlos Bea wrote in his dissent last month. “We do not grant other nations’ foreign ministries a ‘heckler’s veto.’ ’’
Aside from the provision about police checking the legal status of those they have stopped, other sections that federal courts have enjoined:
• Forbid police from releasing anyone arrested until that person’s immigration status is determined.
• Make it a violation of Arizona law for a noncitizen to fail to carry federally issued documentation.
• Allow police to make warrantless arrests if there is a belief the person has committed offenses that allow them to be removed from the United States.
• Create a new state crime for trying to secure work while not a legal resident.
Officials from the Department of Justice in both Washington and Phoenix declined to comment on the state’s decision to seek Supreme Court review.
There was never any question but that the state was going to appeal last month’s 9th Circuit ruling. The only question was whether the state would seek review by the full appellate court or go directly to the Supreme Court.
State Sen. Steve Gallardo, D-Phoenix, a foe of SB 1070, said he has mixed feelings on the move. While he believes the issue has been divisive, Gallardo said going this route means a quicker decision from the nation’s high court, a ruling he predicted would leave the injunction in place.
It also is virtually certain that, no matter what the Supreme Court rules, that will not be the end of the case. With or without an injunction, the Obama administration still wants a final ruling on the legality of SB 1070.
The state also has filed a countersuit saying the federal government is not doing its job of securing the border.
So far most of the state’s legal costs have been covered by donations. Gov. Jan Brewer said she already has taken in close to $4 million in donations, though about half of that already has been spent.
NothingButTheTruth posted at 12:15 pm on Mon, May 9, 2011.
I have no doubt they will want to hear this appeal. There is simply too much riding on it to ignore, and since it pretty much mirrors federal law, they will overturn the most overturned court in the nation. The 9th upheld the lower court decision based on how foreign countries be affected by a state that actually enforced federal laws on immigration. I guess that pretty much tells us what our courts and government thinks about us citizens. To them we are second class compared to the foreign countries that send their poor to us and those who come here as criminal illegal aliens,
Dale Whiting posted at 1:15 pm on Mon, May 9, 2011.
OK NothingButTheTruth,
How do you assess the notion that the Supreme Court normally does not take an issue up on appeal until other circuit courts have heard it and there is a division between the circuits. To date, only one of the many promised versions of SB1070 have been enacted and suit filed by the Administration. Hense there is no "division between the circuits."
Unless the Supremes are going to break with precident and hear this "one off" case, it should be taking years to get this heard in DC! The Supremes defer to even the 9th Circuit when it's decision is an only child.
Brittanicus posted at 1:48 pm on Mon, May 9, 2011.
It’s highly controversial that the US government would not make trespassing on our lands a felony, which goes against our fundamental rights to defend America from enemies domestic and foreign. It’s equally questionable why E-Verify, Secure Communities, is not the law of the land? It's interesting point of view that Napolitano a Leftist, wants an overhaul of current immigration laws, even though the border is far from secure. Best defense is the placement of 4000 to 5000 National Guards personal to support the US Border agents, with full armed enforcement capabilities. Presently, business that hire foreign labor, never receive the hard penalties they deserve. US legislators should revisit this issue and introduce higher mandatory fines, and prison for more than three aliens employed. Business asset confiscation should go to a general fund, appropriated for ICE. When the Ronald Reagan 1986 Amnesty was enacted, that afterwards was NEVER enforced on reigning in on dishonest businesses, visa overstays.
To me shows further the governments disturbing inaction to control our border, no matter the consequences of the criminal invasion. The TEA PARTY is obdurate in upholding the 1986 Immigration Control and Reform Act and not trying to pass another law, to favor illegal aliens already here. Arizona brought this whole dilemma to the public eye, as Obama’s Liberal insiders didn’t like States usurping their power, under the Supremacy Clause of the U. S. Constitution. The bulk, but not all, state laws addressing immigration are preempted by federal regulation. However, the big problem regarding these laws, is what happens when the federal government, is not listening to the united voice of the people? Arizona has been especially picked out by this administration as a scapegoat, resenting the fact they are not doing their job at the border.
Daily I receive around 300 E-mails from people who read my commentaries from across the country, requesting even more information about the illegal alien situation. They seem to trust my opinion and facts, especially after visiting NumbersUSA web site. It might come a surprise to many that a considerable amount of these individual are from generations of legal Hispanics, who are very angry that they are suffering emotionally. That these people both naturalized citizens and permanent residents came here legally and jumped through immigration loopholes to follow the laws.
If you are of legal standing the TEA PARTY has a place for you. A TEA PARTY majority administration will invite highly skilled technical workers, who will not take advantage of the US entitlement safety net, but purge indigent foreigners who will turn into welfare charges. Businesses who hire illegal immigrants must be prosecuted to the full harshness the law. Find out more at NumbersUSA. Every prudent Taxpayer must take their Politicians to task whether federal or State, by calling their offices as soon as possible at Senate—202-224–3121/ House—202-225–3121 or locate these lawmakers in your phone directory blue pages.
NothingButTheTruth posted at 5:27 pm on Mon, May 9, 2011.
Dale, it's plain to see that most states want the federal government to take action and actually do something about the unknown millions of illegal aliens that are dispersed throughout the country because the vast majority of people want it, but the feds wont do their job. States are fed up and willing to take action themselves. The statement that we can't have a bunch of different immigration laws makes sense, and I believe the supreme court can see the importance of either nipping this states rights thing in the bud or force the feds into taking decisive action by allowing states to take action against a federal dereliction that is costing states dearly. If the high court doesn't weigh in, there will be more and more state laws enacted attempting to rid themselves of these parasites for the obamanation and his marxist buddies to sue.
NothingButTheTruth posted at 5:31 pm on Mon, May 9, 2011.
Well stated Brittanicus