Cochise County Sheriff Continues SB 1070 Legal Battle

September 14, 2011

TUCSON - Cochise County Sheriff Larry Dever is continuing his fight over Arizona's controversial immigration enforcement law all the way to the U.S. Supreme Court.

On Wednesday, he announced he has filed a legal brief with the nation's highest court in regards to a lawsuit where he is named in the immigration enforcement debate surrounding Senate Bill 1070.

In his statement today, Sheriff Dever said "this is the opportunity we have been preparing for, knowing this issue was only going to be finally settled in the Supreme Court. Hundreds of people across the nation have helped fund this effort through www.bordersheriffs.com. If ever we had an opportunity to be heard at the decision making level, this is it. The outcome will resonate broadly and establish an unprecedented benchmark for Sheriffs' efforts nationwide to help secure our homeland and provide for increased safety in our communities. It has been an honor, yet a very grueling effort, and worth every bit of energy it has consumed, carrying the water for Cochise County and in a sense our nation. Now we wait and see if the Court will allow our argument and then to see if we can get some floor time in the hearing."

A summary of the Amicus Curiae Brief is listed below. Summary:

In his amicus curiae brief, Cochise County Sheriff Larry Dever does not re-hash the arguments of the State of Arizona and Governor Janice Brewer, the Petitioners, but instead focuses on one issue for which he believes the Supreme Court would benefit from further briefing. In their Petition for Writ of Certiorari to the Supreme Court of the United States, Petitioners briefed only sparingly the Ninth Circuit's erroneous application of "foreign affairs preemption". The Ninth Circuit accepted the United States' declaration that Arizona's assistance with immigration enforcement endangers national foreign relations and concluded that this tipped the scales in favor of preemption even though the court failed to identify any established foreign relation policy that has been compromised.

Specifically, the Ninth Circuit improperly concluded that the federal government's foreign affairs power likely preempted four key provisions of Arizona's Support Our Law Enforcement and Safe Neighborhoods Act ("S.B. 1070") because Arizona's law had a "deleterious effect on the United States' foreign affairs" and was causing "actual foreign policy problems." Citing Supreme Court precedent, the Ninth Circuit declared that: "even...the likelihood that state legislation will produce something more than incidental effect in conflict with express foreign policy of the national government would require preemption of state law." But the Ninth Circuit failed to articulate what "express" foreign policy was offended by S.B. 1070 and how that conflict arose. The Ninth Circuit did not identify any federal statute, treaty or executive agreement setting forth any foreign policy. Instead, the Ninth Circuit based its reasoning on improper evidence including the complaints of foreign governments and Executive Branch officials. Not only was the use of this evidence an error, but continued judicial acceptance of this sort of evidence impermissibly would operate to establish judges as expositors of foreign policy.

Further proliferation of the Ninth Circuit's flawed reasoning threatens to unconstitutionally increase the power of the Executive Branch to preempt a state's legislation based on the mere opinion of certain officials and allow foreign governments to "veto" state law because of a mere incidental effect that the law may have outside of the United States. This practice effectively grants virtually limitless Executive Branch authority in matters implicating a state law and foreign affairs without the need for any textual basis in the Constitution, a particular act of Congress or treaty, or even an executive agreement. In fact, the Ninth Circuit apparently accepts this as a proper allocation of power, as the court determined that S.B. 1070 was likely preempted simply because it "thwarts the Executive's ability to singularly manage the spillover effects of the nation's immigrations laws on foreign affairs."

Finally, while illegal immigration may have abstract foreign relations implications, its exponential increase over the past two decades has made it a local issue that must be addressed at the state level. All 50 states have passed some sort of immigration law. District courts have followed, and will continue to follow, the Ninth Circuit's reasoning as persuasive authority on the matter. The Supreme Court's review is urgently needed to avoid further proliferation of incorrectly reasoned cases relating to state-level immigration laws.

Although state sheriffs are not federal border patrol officers, they possess the obligation to investigate the criminal activities associated with illegal entry, including, murder, kidnapping, drug running, gun smuggling and human trafficking. In an effort to combat this growing epidemic, several states have enacted legislation, such as S.B. 1070. These state efforts seek to empower local law enforcement officers with the additional, reasonable, tools necessary to combat the adverse effects of illegal immigration. If the Ninth Circuit's decision in United States v. Arizona, 641 F.3d 339 (9th Cir. 2011) is allowed to stand, Sheriff Dever and other local law enforcement officers across the United States will see their authority compromised while their communities continue to be battered by the waves of crime cascading across the southern border. Local law enforcement will be deprived of a vital tool by virtue of a flawed conclusion that states are wholly preempted from taking any action within the realm of immigration for fear that such steps might ruffle foreign feathers.

http://www.kvoa.com/news/cochise-county ... al-battle/