Thread: Panel's questions hint at letting AZ proceed with mgt checks

Panel's questions hint at letting AZ proceed with migrant checks
US court could OK key part of SB 1070
Howard Fischer Capitol Media Services | Posted: Tuesday, November 2, 2010 12:00 am

SAN FRANCISCO - Questions raised by federal appellate judges Monday indicated they could let Arizona start enforcing one of the most controversial sections of SB 1070 - one that allows police to determine if someone they stop is here illegally.

Members of the three-judge panel of the 9th U.S. Circuit Court of Appeals pointed out that the Obama administration is making a "facial" challenge to Arizona's new immigration law, which requires the federal government to prove it is impossible to enforce the disputed provisions of the statute in any constitutional way.

But Judge Carlos Bea noted one disputed provision that says when police have stopped people, they are required, when practicable, to try to determine their immigration status with federal agencies if there is "reasonable suspicion" they are in this country illegally. Bea questioned whether that, by itself, is unconstitutional.

Bea told Edwin Kneedler, the deputy federal solicitor general, he does not see how that is pre-empted by federal law.

Kneedler conceded there is nothing wrong with police officers' making the checks on their own. "Our position is not that they're not authorized to" check with Immigration and Customs Enforcement, he said. "Our objection is that the state statute mandates it."

Bea was less certain.

"It's up to the state how they want to use their people," the judge responded.

Judge John Noonan added that if Congress doesn't want states requiring their officers to make such mandatory checks, there is a simple remedy: It can direct ICE to stop responding to the inquiries.

The questions by the judges indicate they are giving serious consideration to arguments by John Bouma, attorney for Gov. Jan Brewer, that U.S. District Judge Susan Bolton was wrong in July when she blocked the state from enforcing this provision of SB 1070.

Bolton concluded the U.S. Justice Department, which challenged the law, is likely to prevail when the case finally makes its way through the legal system, which would require a finding that there is no way the law can be enforced in a constitutional manner.

The judges appeared less swayed by other assertions by Bouma, that Arizona can legally make it a violation of state law for anyone in this country illegally to seek work here, another section of SB 1070 that Bolton placed on hold.

"That is clearly consistent with congressional intent," Bouma argued. "Congress has made it clear that they're not supposed to be here."

Bea, however, pointed out that federal law makes it a crime only to hire an illegal immigrant, not to be one working here. He said what Arizona is trying to do does not mirror federal law but imposes entirely new - and probably impermissible - state penalties.

For the same reason, the judges also questioned arguments by Bouma that police can charge illegal immigrants with breaking state law because they are not carrying certain federal documents.

Brewer, who attended the hearing, said after the hearing that SB 1070 is necessary because the federal government is not doing its job, although she acknowledged that the Obama administration is devoting more staffing and resources to apprehending and deporting illegal immigrants.

"But it certainly isn't enough," she said. "We are seeing people still afraid down in the southern border to feel safe in their homes, which is something that we will not and cannot tolerate."

Democrat Terry Goddard, Brewer's foe in today's election, criticized the governor for making the trip, saying her presence is neither legally necessary nor relevant.

"She is trying to convince people that she is protecting the border," Goddard said in a statement Monday. "But SB 1070 has no impact on border crime."

But Brewer said the legal challenge by the Obama administration names not only the state but also her.

"Most defendants show up in court when they're sued," she said. "And I'm here to represent the state of Arizona."

The judges gave no indication when they will rule. Brewer said that if the appellate court upholds any part of Bolton's injunction, she will seek review by the U.S. Supreme Court.

Sen. Russell Pearce, R-Mesa, who wrote the law and also attended Monday's hearing, said he believes the nation's high court will side with Arizona by at least a 5-4 margin.

"This is an issue of a sovereign state doing what a sovereign state ought to do, and that's protecting its citizens from those who break the law," he said. Pearce also said the Obama administration is wrong in saying the state is trying to intrude into the exclusive purview of the federal government.

http://azstarnet.com/news/local/border/ ... ml?print=1

The judges appeared less swayed by other assertions by Bouma, that Arizona can legally make it a violation of state law for anyone in this country illegally to seek work here, another section of SB 1070 that Bolton placed on hold.

"That is clearly consistent with congressional intent," Bouma argued. "Congress has made it clear that they're not supposed to be here."

Bea, however, pointed out that federal law makes it a crime only to hire an illegal immigrant, not to be one working here. He said what Arizona is trying to do does not mirror federal law but imposes entirely new - and probably impermissible - state penalties.

So now perhaps it is time for Arizona to capitalize on that on the recorded acknowledgement and pass a law allowing for strict jailtime and penalties for employers who hire illegal aliens. And let's leave out the word knowingly, shall we? To suggest they are clueless is an insult to unemployed American citizens.

Originally Posted by melena29

The judges appeared less swayed by other assertions by Bouma, that Arizona can legally make it a violation of state law for anyone in this country illegally to seek work here, another section of SB 1070 that Bolton placed on hold.

"That is clearly consistent with congressional intent," Bouma argued. "Congress has made it clear that they're not supposed to be here."

Bea, however, pointed out that federal law makes it a crime only to hire an illegal immigrant, not to be one working here. He said what Arizona is trying to do does not mirror federal law but imposes entirely new - and probably impermissible - state penalties.

So now perhaps it is time for Arizona to capitalize on that on the recorded acknowledgement and pass a law allowing for strict jailtime and penalties for employers who hire illegal aliens. And let's leave out the word knowingly, shall we? To suggest they are clueless is an insult to unemployed American citizens.

good I hope they get jail time & penalties it about time we have this in PA it bad all over good gov jan Brewer