Monday, December 13, 2010


Another way to discuss the issues in the appeal of Arizona's SB 1070 law is to look at how the party's discuss the case. The case of the United States of America, Plaintiff/Appellee v. State of Arizona; and Janice K. Brewer, Governor of the State of Arizona, in her Official Capacity, Defendants-Appellants, case number CV 10-1413-PHX-SRB before the Ninth Circuit Court of Appeals.

Arizona frames the debate in terms of “rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns,”

The United States sees the case as one where the Federal Government has exclusive authority to establish the Nation’s immigration policy and priorities, to avoid the creation of a patchwork of state immigration enforcement schemes, and to prevent undue burdens on lawfully present aliens.

In Arizona's view the “Support Our Law Enforcement and Safe Neighborhoods Act,” as amended or SB 1070 was passed to combat the harm that Arizona and its citizens are suffering as a result of illegal immigration. Arizona contends that the Department of Homeland Security (“DHS”) has demonstrated its inability (or unwillingness) to enforce the federal immigration laws effectively. The Act’s primary purpose, therefore, is to enhance the assistance Arizona and its law enforcement officers provide in enforcing federal immigration laws.

The United States' sees the purpose behind SB 1070 differently. In the view of the appellees Arizona has created a state immigration policy that makes “attrition through enforcement the public policy of all state and local government agencies in Arizona,” regardless of federal immigration policy or enforcement priorities.

Arizona claims that its Legislature carefully crafted the Act to ensure that Arizona’s officers would enforce SB 1070 in compliance with existing federal laws and pursuant to well established criminal and constitutional law and practice.

Arizona says that rather than welcoming what Arizona claims is much-needed assistance in enforcement of Federal Immigration Law, the United States sued the State of Arizona and its Governor twenty-three days before the Act’s effective date, raising a facial challenge to SB 1070 principally on preemption grounds.

The United States sees it differently. The suit brought by the United States challenged SB 1070 in order to guard the federal government’s foreign policy prerogatives, and to ensure cooperation with States in aid of the federal government’s immigration enforcement rather than diversion of the federal government’s resources from its prioritized immigration enforcement against suspected terrorists and criminal aliens.

Arizona challenges that the United States does not have exclusive authority over immigration and that the preemption claim flies in the face of express directives from Congress and well-established preemption law. Congress, Arizona claims, has repeatedly encouraged cooperation and assistance from state and local authorities in enforcing federal immigration laws. And it is Congress’ intent—not DHS’s— that controls whether S.B. 1070 is preempted.

The United States, essentially defending the trial court, said that the court explained that the Constitution vests exclusive authority in the national government to regulate immigration. Pursuant to that authority, Congress has established a comprehensive framework that governs entrance and admission into the United States by foreign nationals, the consequences of illegal entry, and the procedures for removal and deportation of aliens from this country.

Congress has also comprehensively regulated the employment of persons unlawfully present in the United States, and imposed a calibrated scale of civil and criminal penalties on employers who knowingly hire such persons, but declined to impose criminal penalties on such persons who seek or obtain employment.

Arizona is saying that the trial court erred in issuing its preliminary injunction. In doing so, the district court, according to Arizona, misapplied the law by:
(1) misconstruing well-established principles of federal preemption law;
(2) disregarding its obligation to preserve the constitutionality of the Act’s provisions and to presume that Arizona will implement the provisions in a constitutional manner; and
(3) ignoring the United States’ burden on a facial challenge to show that the provisions of SB. 1070 are unconstitutional in all of their applications.

Instead, the district court granted the United States’ request for the extraordinary remedy of injunctive relief by accepting the United States’ speculation regarding the potential burden that enforcing sections 2(B), 3, 5(C), and 6 might impose on narrow categories of lawfully-present aliens in hypothetical and speculative scenarios, and the possible impact to DHS’s achievement of its newly-established objectives.

The United States says the court enjoined a provision that makes it a crime in Arizona for a person to violate 8 U.S.C. §§ 1304(e), 1306(a), which require certain aliens to register with the federal government and carry with them federal registration documentation. SB. 1070, § 3, codified at Ariz. Rev. Stat. § 13-1509.

The court also enjoined a provision that makes it a crime in Arizona for a person who is unlawfully present in the United States to apply for or to perform work as an employee or independent contractor in Arizona. S.B. 1070, § 5, codified at Ariz. Rev. Stat. § 13-2928(C).

Another of the enjoined statutory provisions requires all state and local law enforcement officers in Arizona to determine, when practicable, the immigration status of any person whom they stop or detain whenever reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, and to verify the immigration status of any person who is arrested before the person is released. S.B. 1070, § 2, codified at Ariz. Rev. Stat. § 11-1051(B).

The fourth enjoined provision authorizes a state officer to arrest a person without any warrant if the officer has probable cause to believe that the person, including a person who is authorized to be in the United States and is lawfully present here, has committed at any previous time a public offense that would make the person removable from the United States. S.B. 1070, § 6, codified at Ariz. Rev. Stat. § 13-3883(A)(5).

Oral arguments in this case were heard by a three judge panel of the United States Court of Appeals sitting at San Francisco, California on November 1st. The judges were Judge Noonan, Judge Paez, and Judge Bea. To watch those oral arguments link to the Ninth Circuit's web site:

No comments:

Post a Comment