Three federal judges will hear arguments Monday by attorneys for the governor on why Arizona should be allowed to start enforcing SB 1070.
John Bouma, Jan Brewer's lead attorney, will argue the law that she signed last April, designed to give state and local police more power to detain and arrest those they suspect are in this country illegally, is within the legal authority of the state.
That will get an argument from lawyers for the U.S. Department of Justice who contend only the federal government can regulate immigration. They want the law - or at least its key provisions - kept on hold.
Technically speaking, Monday's hearing is not about the merits of whether SB 1070 is constitutional. Instead, it simply concerns whether U.S. District Court Judge Susan Bolton acted properly in enjoining the state from enforcing several sections while the case makes its way through the legal system.
But the three-judge panel will need to reach at least a preliminary decision about whether they believe arguments by the Obama administration that Arizona acted illegally in usurping power reserved for the federal government. That is because a federal judge can issue an injunction only if the challengers to a law have shown they are likely to succeed on the merits once the case is fully presented.
Bolton sided with the Department of Justice. But that is not the whole issue.
Federal rules also require a judge to consider the "balance of hardships," in essence to decide who would be hurt if a possibly illegal law is allowed to take effect versus what harm would occur to the state by placing the law on hold. That often is weighed based on whether there would be "irreparable harm" to the challengers if the law is permitted to be enforced.
In this case, Bolton concluded that letting Arizona start enforcing immigration laws undermines the international relations interests of the federal government.
The judge, in essence, ruled those outweighed arguments by Bouma that there will be financial harm to the state by the continued presence of illegal immigrants.
Finally, an injunction requires a showing that the injunction is in the public interest. Again, Bolton sided with the Obama administration.
But Bolton said only several sections of SB 1070 meet all three tests. Sections she enjoined include:
• 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 documentation;
• Creating a new state crime for trying to secure work while not a legal resident;
• 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.
Bolton, however, rejected arguments by the Department of Justice that other sections of SB 1070 are preempted by federal law. These include creating a separate state crime making it illegal to transport or harbor an illegal immigrant, and changes in law dealing with impoundment of vehicles that are used to transport those not in the country legally.
The judge also noted that the Obama administration did not challenge several other provisions of the law, including:
• Making it a crime to stop a vehicle in traffic to hire a day laborer or for someone looking for work to get into a stopped vehicle;
• Requiring state officials to work with the federal government regarding illegal immigrants;
• Allowing Arizona residents to file suit against any agency, official, city or county for adopting policies that restrict the ability of workers to enforce federal immigration law "to less than the full extent permitted by federal law."
No decision is expected Monday. In fact, there is no deadline for the court to act.
It is possible that the judges will delay a ruling until the U.S. Supreme Court rules on a separate case which challenges the legality of a 2007 Arizona law allowing the state to suspend or revoke the licenses of any business found guilty of knowingly hiring undocumented workers.
If the justices conclude that all state laws dealing with immigration are preempted, that virtually seals the fate of SB 1070. But they could accept arguments by the state that there are exceptions which give states some role.
The high court is set to hear arguments on that on Dec. 8, with a decision not expected until the spring.
Whatever the appellate judges decide in this case, Arizona voters appear to be on the governor's side: A Rasmussen Reports survey of 500 likely voters conducted Thursday found 55 percent of those questioned agree with her decision to challenge the injunction with 38 percent against the appeal.
Each of the judges hearing Monday's case has some particular knowledge of immigration issues.
Carlos Bea was born in Spain and immigrated to the United States through Cuba. As a college student, he also had a run-in of sorts with federal immigration officials who said he had forfeited his permanent resident status and should be deported.
Richard Paez is the son of Mexican immigrants.
And John Noonan wrote a ruling last year which voided a streamlined process being used by federal magistrates in Tucson of taking guilty pleas from large groups of illegal immigrants.