ARIZONA 5B 1070: HOW THE PARTIES VIEWED THE ISSUES ON APPEAL & THE LINK TO WATCH THE ORAL ARGUMENTS

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: http://www.ca9.uscourts.gov/media/?m_page_size=50&m_sort_field=&m_sort_field_by=&m_sort_type=&m__ff_cms_media_video_media_type_operator=%3D&m__ff_cms_media_video_media_type=Watch&m__ff_cms_media_case_name_operator=like&m__ff_cms_media_case_name=&m__ff_cms_media_case_num_operator=like&m__ff_cms_media_case_num=&m__ff_cms_media_case_panel_operator=like&m__ff_cms_media_case_panel=&m__ff_cms_media_hearing_loc_operator=like&m__ff_cms_media_hearing_loc=&m__ff_cms_media_hearing_date_mod_operator=like&m__ff_cms_media_hearing_date_mod=&m__ff_selSearchType=0&m__ff_onSUBMIT_FILTER=Search.

THE UNITED STATES v. ARIZONA - A LOOK AT THE QUESTIONS AND ARGUMENTS PRESENTED TO THE NINTH CIRCUIT COURT OF APPEALS

Arizona appealed Federal District Judge Susan Bolton's Order and Preliminary Injunction against parts of Arizona's SB 1070 law, the "Support Our Law Enforcement and Safe Neighborhoods Act." The district court preliminarily enjoined Arizona from enforcing sections 2(B), 3, 5(C), and 6 of the Act.

The matter in the Ninth Circuit began with a skirmish on whose rules would apply for the expedited appeal of Judge Bolton's Order. Arizona wanted a schedule that was more quickly paced than the normal rule, Ninth Circuit Rule 3-3, would allow. The Court of Appeals determined it was appropriate to implement Rule 3-3 in this matter.

Arizona claims that its citizens are suffering well documented and undisputed harm because of illegal immigration. The United States, according to Arizona's brief, has failed to effectively enforce federal immigration law. The purpose behind SB 1070, according to Arizona, is to "enhance the assistance Arizona and its law enforcement officers provide in enforcing federal immigration laws."

Arizona is claiming that the United States may not claim that enforcement of federal immigration law by a state is preempted by the federal government. Arizona says the federal government, in the past, has welcomed the assistance of state law enforcement efforts in arena of immigration law. Arizona's position is that Congress must expressly claim the preemption and that such a claim is not within the purview of the Department of Homeland Security.

Arizona's opening volley on appeal tells the Ninth Circuit that Judge Bolton erred in:

(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 S.B. 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 objective, [emphasis by Appellants].

The Issues Presented on appeal by Arizona are:

1. With respect to the district court’s finding that the United States is likely to succeed on the merits of its claims that sections 2(B), 3, 5(C), and 6 are facially preempted, the issues presented are:

a. Whether the United States can demonstrate that section 2(B) is facially preempted based on the potential that enforcement of section 2(B) could burden certain lawfully-present aliens or federal resources, even though section 2(B) merely asks Arizona’s law enforcement officers to exchange information with ICE that Congress has expressly required ICE to receive and provide.

b. Whether section 3 stands as an obstacle to the achievement of current congressional objectives by mandating compliance with two specific federal immigration registration laws.

c. Whether Congress’ decision not to impose sanctions on employees who perform unauthorized work reflects a “clear and manifest” intent to prohibit states from doing so.

d. Whether the warrantless arrest provision in section 6 can be facially preempted based on speculation that Arizona’s law enforcement officers

might implement it in an unconstitutional manner.

2. With respect to the district court’s finding as to the non-merits factors,  the sole issue presented is whether it is in the public interest to prohibit Arizona from acting consistently with congressional objectives to address “the rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns” that the federal government has admittedly failed to address authoritatively.

The United States frames the issues as:

Whether the district court abused its discretion in preliminarily enjoining four provisions of an Arizona law that establish a nondiscretionary state immigration enforcement scheme that is not subject to the control or priorities of federal immigration authorities, and which

(1) makes it a state crime for an alien to violate provisions of federal law that require some aliens to complete and carry federal registration documentation;

(2) makes it a state crime for an unauthorized alien to seek or obtain employment;

(3) mandates all state and local officers to determine, as practicable, the immigration status of persons whom they stop or detain if there is reasonable suspicion that the person is an alien and unlawfully present in the United States, and to verify the immigration status of all persons arrested before they are released; and

(4) authorizes state officers to arrest without a warrant any person, including those who are lawfully present in the United States, when the officer has probable cause to believe that the person has at some point committed an offense that makes the person removable from the United States. 

Remember the standard of review the Court employs in review a facially unconstitutional challenge is the inconceivable standard.  Arizona is arguing that there must be some conceivable circumstance in which their statute is constitutional.  If it is inconceivable that the statute can be constitutionally applied then the facial challenge is sustained.

The United States is arguing that Judge Bolton did not abuse her discretion when she issued her Order and Preliminary Injunction. The United States' position is that 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."

This is a case where it is going to be easy to take your eye off the ball. The first hurdle the Court of Appeals will jump is whether Judge Bolton abused her discretion when issuing the Preliminary Injunction.

When issuing a preliminary injunction the trial court must apply a four part test. First the Plaintiff must show a reasonable likelihood that they will prevail on the merits of the case. Second, irreparable harm will occur absent the order. Third is a balancing test where the judge must find that less harm will accrue to the defendants if the Preliminary Injunction is issued compared to more harm accruing to the Plaintiffs if the Preliminary Injunction does not issue. Finally, that the public interest weighs in favor of the Plaintiff.

This appeal is narrowing its focus on the likelihood of the parties succeeding on the merits, the first prong of the test. Judge Bolton ruled in favor of the United States on this point. Arizona argues that it too can likely succeed on the merits. The stage is set for the Ninth Circuit to begin its review with the first prong of the four part test.