Arizona immigration law: Court refuses to lift stay

by Alia Beard Rau and Michael Kiefer - Apr. 11, 2011 01:35 PM
The Arizona Republic

The U.S. Court of Appeals for the 9th Circuit has ruled that a lower federal court judge was right in her decision to halt parts of Senate Bill 1070 from going into effect last year.

The ruling comes almost a year after Gov. Jan Brewer signed the nation's toughest immigration law into effect and five months after the appeals court was asked to consider overturning the injunction issued by U.S. District Court Judge Susan Bolton in the lawsuit filed by the U.S. Department of Justice.

The original lawsuit challenges the constitutionality of SB 1070, arguing that immigration regulation is the jurisdiction of the federal government and not the state.

Bolton's ruling halted four of the more than a dozen parts of the law from going into effect:

• The portion of the law that requires an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there's reasonable suspicion they're in the country illegally.

• The portion that creates a crime of failure to apply for or carry "alien-registration papers."

• The portion that allows for a warrantless arrest of a person where there is probable cause to believe they have committed a public offense that makes them removable from the United States.

• The portion that makes it a crime for illegal immigrants to solicit, apply for or perform work.

There are three parts to that part of the law. Two of them went go into effect, one of them did not.

The 9th Circuit agreed that all four of those portions of the law should be halted from going into effect.

"The question before us is not, as Arizona has portrayed, whether state and local law enforcement officials can apply the statute in a constitutional way," the court ruling reads. "There can be no constitutional application of a statute that, on its face, conflicts with Congressional intent and there fore is preempted by the Supremacy Clause."

The U.S. Department of Justice's only comment on the ruling was that they were "pleased with the court's decision."

The Governor's Office has not responded to a request for comment.

Defendants of SB 1070 said the fight is far from over. They can now ask the 9th Circuit to revisit the issue en banc, which is by a larger panel of judges. Or they can try to go straight to the U.S. Supreme Court.

Both the state and bill sponsor Sen. Russell Pearce, R-Mesa, who was recently granted a request to be named as a defendant representing the entire state Legislature in the lawsuit, said they will ask the Supreme Court to review the ruling.

"I'm pledged to work as hard as I can to bring the case to the U.S Supreme Court and win it there," Arizona Attorney General Tom Horne said.

Horne focused on certain points made by Judge Carlos T. Bea, the lone dissenter of some part of the ruling. Horne said that asking police to consult with federal immigration officials is "no burden; It's an easy thing to carry out." He said they already are required by federal statute to respond to inquiries regarding immigration.

As for the section of the law that makes it a state crime not to carry identification showing immigration status, Horne said, "The federal government can't be pre-empted from enforcing a law that's identical to federal law."

Pearce said he was not surprised to see such a ruling from what he calls "the most liberal court in the nation."

"They have a history of supporting law breakers over lawmakers," he said. "We'll move on the Supreme Court where we'll have much better success."

Pearce declined to go so far as to criticize attorney John Bouma, who was hired by Brewer to represent the state and who argued the case before the 9th circuit.

"But that was one of the reasons I wanted to be at the table," he said. "Being the author of this and being involved in this issue for 25 years, there are some arguments that I thought should have been made. This is about states' rights."

Omar Jadwat, an attorney representing the American Civil Liberties Union in another SB 1070 case, called the ruling a "strong affirmation of the injunction."

"It should send a strong message that SB 1070 is unconstitutional - at least those parts of it - and it should send a strong message to other states thinking of this kind of legislation," he said.
About two dozen states this year considered immigration measures similar to that of SB 1070. Most have failed; five state legislatures are still debating the issue.

Immigrant-rights activist Salvador Reza called the ruling a bittersweet victory. He said he won't rest until the Legislature overturns SB 1070. He said they are planning a large rally at the Capitol on April 23, the anniversary of the signing of the law.

Sen. Steve Gallardo, D-Phoenix, said he has draft legislation written that proposes to overturn the law, but was waiting to propose it until the court ruled. He said if an opportunity arises, he will propose it as an amendment to an existing bill this session.

"It's time for members of this Legislature to recognize that we no longer need SB 1070," Gallardo said. "It has put a black cloud over the state of Arizona like no other piece of legislation."

The appeals court ruling does not impact the underlying case, which is still moving forward under Bolton.

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