Tuesday, April 12, 2011

By The Time I Get To Arizona: Part III - Fed Appeals Court Stops AZ's Immigration Law

With all the media attention on the controversial Republican Governors of Wisconsin, Ohio, and Florida, many of us may have become derilect in our duty to pay our respects to the original gangsta who kicked all of this Republican Governor controversy off in the first place - Arizona Governor Jan Brewer.  That's right.  Ya'll musta forgot.  It seems only yesterday that Governor Brewer and crew announced their new law to the country that targets Mexicans sought to reduce the number of undocumented immigrants in the State of Arizona.  Racial discrimination aside, what made this law so controversial on a national stage is that it required local police to regulate immigration which is a job that belongs solely to the federal government.  Typically, states are precluded from doing things that the Constitution specifically assigns to the federal government - like creating the post office, printing money, declaring war, signing treaties with foreign countries, etc.  However, supporters of Arizona's law have argued that since the federal government has failed miserably to live up to its duty to police immigration, the States have therefore been forced to take matters into their own hands.  Maybe so, but is it legal for a State like Arizona to do what it did?

Yesterday, we got one step closer to getting the final answer to that question when a federal appeals court (the 9th Circuit Court of Appeals) ruled to uphold an earlier decision by a lower federal court which blocked Arizona's immigration law from taking effect.

Per AZ Central:

"The Arizona statute before us has become a symbol," Judge John Noonan wrote.
"For those sympathetic to immigrants to the United States, it is a challenge and a chilling foretaste of what other states might attempt. For those burdened by unlawful immigration, it suggests how a state could tackle that problem. It is not our function, however, to evaluate the statute as a symbol. We are asked to assess the constitutionality."
Two of the three judges on the panel are staunch conservatives appointed by Republican presidents, and some legal experts say the court's extensive analysis of constitutional questions could predict the downfall of the nation's toughest immigration law.
The ruling in the lawsuit filed by the U.S. Department of Justice comes nearly a year after Gov. Jan Brewer signed SB 1070 into law. It supports an injunction issued in July by U.S. District Judge Susan Bolton on the basis that immigration is the bailiwick of the federal government, not individual states.

A U.S. district court judge did not abuse her discretion in blocking portions of Arizona’s 2010 law that aims to identify, prosecute and deport undocumented immigrants, the San Francisco-based 9th U.S. Circuit Court of Appeals ruled today.
According to the Associated Press the law, known as the Support Our Law Enforcement and Safe Neighborhoods Act, would require police to check immigration status while enforcing laws, among other things. The U.S. Justice Department sued to block the law shortly after it was signed by Gov. Jan Brewer. The action argues that the Arizona law violates the Supremacy Clause, on the basis that the state law is pre-empted by the Immigration and Nationality Act.
“In sum, we are not persuaded that Arizona has the inherent authority to enforce the civil provisions of federal immigration law,” Judge Richard Paez wrote in the opinion (PDF) for the 9th Circuit. “Therefore, Arizona must be federally authorized to conduct such enforcement."

So what does this mean going forward?

Well, one thing to keep in mind is that the 9th Circuit Court of Appeals (which is the federal appeals court for the ENTIRE west coast) has a notorious reputation in the legal community for being the Court that is overturned the most by the Supreme Court.  And the reason why it is overturned on so many cases is that the 9th Circuit is one of the most liberal Courts in America and it sometimes allows some liberal bias to color some of its decisions.

However, that doesn't appear to be the case here.  As noted above in the quote from AZ Central, this particular panel of 9th Circuit judges was actually made up of one Dem (Judge Richard Paez) and 2 Republicans: Judge John Noonan and Judge Carlos Bea.   So there certainly can be no claim of liberal bias in the opinion.

Lastly, everybody assumes that the Supreme Court will take the case but it's important to remember that of the thousands of cases that petition the Supreme Court each year, the Supreme Court literally refuses to hear 99% of them.  If this case doesn't manage to become one of the lucky 1%, then the 9th Circuit's decision will automatically become the last word on Arizona's immigration law.

Should States require their police officers to check immigration status?
Do you agree with the 9th Circuit that the States are precluded by federal law here?
If your state police could check immigration status, on what basis do you request to see the papers of person A but not person B?
Will the Supreme Court take the case?
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