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Appeals court rules against SB 1070

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Appeals court rules against SB 1070

Ninth Circuit denies Brewer's appeal, won't lift stay

  • SEIU International/Flickr

Denying an appeal by Gov. Jan Brewer, a federal appeals court upheld Monday a lower court's block of much of Arizona's controversial SB 1070 law aimed at illegal immigration.

A three-judge panel of the Ninth Circuit Court of Appeals ruled that the lower court "did not abuse its discretion" in blocking parts of the law from taking effect last year.

The decision, a victory for the Obama administration and immigration activists who filed suit to block the law, means the SB 1070 case will likely find its way to the Supreme Court.

The chairman of the Pima County Democratic Party hailed the decision, calling SB 1070 a "cynical law."

In an afternoon press release, Brewer said the ruling "does harm to the safety and well-being of Arizonans who suffer the negative effects of illegal immigration."

The state will examine its options to appeal "in the days ahead," the statement said.

While Monday's decision means only that the law cannot be enforced while it is under review by the courts, it is a further blow to Arizona's attempt to make immigration law. A failed appeal to the Supreme Court would make it unlikely SB 1070 would ever take effect.

The decision

The judges agreed with U.S. District Court Judge Susan Bolton, who issued a preliminary injunction in July preventing sections of SB 1070 from being enforced.

The panel agreed, with one dissenter on some points, that there is sufficient evidence to believe that the blocked provisions unconstitutionally infringe on the federal government's exclusive power to make immigration laws.

The decision is supported by "the threat of 50 states layering their own immigration enforcement rules on top of the Immigration and Naturalization Act," wrote Judge Richard Paez.

From the decision:

The relevant provisions of S.B. 1070 facially conflict with Congressional intent.


We stress that 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... This formulation misses the point: there can be no constitutional application of a statute that, on its face, conflicts with Congressional intent and therefore is preempted by the Supremacy Clause.


By imposing mandatory obligations on state and local officers, Arizona interferes with the federal government's authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed DHS agents.

The decision rejected Arizona's contention it could enact a state law against undocumented workers seeking employment, citing Congress' "affirmative choice not to criminalize work as a method of dis- couraging unauthorized immigrant employment."

"Congress has deliberately crafted a very particular calibration of force which does not include the criminalization of work," Paez wrote.

The court also upheld Bolton's injunction against Arizona law enforcment arresting suspected illegal immigrants without warrants based on a believe that they could be subject to civil removal from the United States.

"Contrary to the State's view, we simply are not persuaded that Arizona has the authority to unilaterally transform state and local law enforcement officers into a state-controlled DHS force to carry out its declared policy of attrition," the decision said.

The panel split on part of the decision, with Judge Carlos Bea's dissent saying that there is evidence that Congress intended states to assist in enforcing some federal immigration laws.

Bea found two of the law's provisions constitutional, those allowing police to ask questions about immigration status and make warrantless arrests.

"As I see it, Congress has clearly expressed its intention that state officials should assist federal officials in checking the immigration status of aliens," Bea wrote.

But Paez and Judge John Noonan disagreed, writing: "Congress intended for state officers to systematically aid in immigration enforcement only under the close supervision of the Attorney General...."

The court also cited the federal government's objection to the law because it would interfere with foreign relations as part of its decision.

"Arizona's law has created actual foreign policy problems of a magnitude far greater than incidental" and the law "thwarts the Executive's ability to singularly manage the spillover effects of the nation's immigration laws on foreign affairs," Paez wrote.

A concurring opinion by Noonan amplified concerns about Arizona's assuming powers delegated to the federal government:

That fifty individual states or one individual state should have a foreign policy is absurdity too gross to be entertained. In matters affecting the intercourse of the federal nation with other nations, the federal nation must speak with one voice.


The foreign policy of the United States preempts the field entered by Arizona. Foreign policy is not and cannot be determined by the several states.


The Arizona statute before us has become a symbol. For those sympathetic to immigrants to the United States, it is a challenge and a chilling foretaste of what other states might attempt. For those burdened by unlawful immigration, it suggests how a state could tackle that problem. It is not our function, however, to evaluate the statute as a symbol. We are asked to assess the constitutionality of five sections on their face integrated by the intent stated in Section 1. If we read Section 1 of the statute, the statute states the purpose of providing a solution to illegal immigration into the United States. So read, the statute is a singular entry into the foreign policy of the United States by a single state. The district court properly enjoined implementation of the four sections of the statute.


Calls to Gov. Brewer's office were not returned, but she and state Attorney General Tom Horne, a fellow Republican, issued a statement mid-afternoon.

"I remain steadfast in my belief that Arizona and other states have a sovereign right and obligation to protect their citizens and enforce immigration law in accordance with federal statute," Brewer said.

"It has always been expected that this legal fight would be a long one," the statement said, calling the Ninth Circuit "the most overturned appeals court in the nation."

Brewer and Horne are considering the options of petitioning the full appeal court for a re-hearing, or asking the U.S. Supreme Court to take up the case.

The sole point of the decision addressed by the statement was the appeals court's citing of statements by foreign governments in considering the law's impact on foreign policy. Brewer called that "internationalism run amok," while Horne said "As the dissent by Judge Carlos T. Bea eloquently stated, foreign governments should not be given a 'heckler's veto' to establish preemption by the federal government over the state."

Local Democrats applauded the decision, calling SB 1070 "reckless."

"It's the federal government's job to enforce federal immigration law, just as the Border Patrol is prohibited from enforcing state law. What's worse, it’s a cynical law written specifically to harass the law-abiding Latino community. We urge Congress and the president to finally tackle federal immigration reform in a way that fixes the problem, rather than simply fixing blame," said Jeff Rogers, chairman of the Pima County Democratic Party, in a morning press release.

"It’s up to Washington D.C., to secure the border, punish businesses for hiring illegal immigrants and provide a path to legal status for those here now, contributing to our society," Rogers said.

State Sen. Russell Pearce, the driving force behind the law, called the decision "utterly predictable."

"The basis for today’s split decision is flawed. If Congress wanted to pre-empt the states from enforcing laws, it would have used its plenary powers," Pearce said in a press release.

SB 1070 is constitutionally sound, and that will be proven when the U.S. Supreme Court takes up this case and makes the proper ruling," Pearce said. "This battle is a battle of epic proportions. It is about a state’s right to enforce the laws of this land and protect its citizens from those who break our laws."

Cochise County Sheriff Larry Dever, a supporter of SB 1070, likened the decision to "judicially-imposed amnesty."

"It’s disturbing that some of the nation’s top judges continue to misunderstand the Constitution. The Constitution makes federal law supreme to state laws. It does not make the Administration’s policy of ignoring federal laws against illegal immigration supreme to our laws. We agree with the dissenting judge that much of the majority’s opinion is Alice in Wonderland, results-oriented legal mush," Dever said in a press release.

Dever said that courts have "accepted speculative and vague claims that (SB 1070) would lead to racial profiling," but the Ninth Circuit's decision does not touch on the issue of racial profiling.

July injunction

Bolton's July 28 injunction, issued the day before the law was to take effect, blocked several parts of the anti-illegal immigration measure:

  • The section 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, and the section requiring that anyone arrested have their immigration status verified.
  • The section that creates a state crime of failure to apply for or carry "alien-registration papers."
  • The section that makes it a crime for illegal immigrants to solicit, apply for or perform work (but not the section on day laborers).
  • The section 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.

Gov. Jan Brewer filed an appeal with the Ninth Circuit the day after Bolton made her ruling.

Saying the Justice Department is likely to show at trial that those sections are preempted by federal law, Bolton agreed in her July ruling that the federal government is likely to suffer irreparable harm if an injunction was not issued "because the federal government's ability to enforce its policies and achieve its objectives will be undermined by the state's enforcement of statutes that interfere with federal law."

Bolton rejected arguments by the Justice Department that other parts of SB 1070 are preempted by federal laws. She left intact sections of the law that create a state crime of transporting or harboring an illegal alien, and changes in the law on impounding vehicles used to transport illegal immigrants.

The judge left other sections of SB 1070 intact because they were not challenged by the feds:

  • The section requiring Arizona officials to work with the federal government regarding illegal immigration.
  • The section allowing suits against agencies, officials and government bodies for adopting policies that restrict the enforcement of federal immigration statutes "to less than the full extent permitted by federal law."

"I look at this as a bump in the road," said Gov. Jan Brewer in July. Brewer, who signed SB 1070 in April 2010, expressed confidence that the law is constitutional and will be upheld at trial. Brewer said she would appeal the injunction.

"I will battle all the way to the Supreme Court, if necessary, for the right to protect the citizens of Arizona," Brewer said in a statement last year.

SB 1070's enactment set off a renewed debate over immigration in Arizona and throughout the nation. Legislators in other states have looked to Pearce and Kansas Secretary of State Kris Kobach (another architect of the law) for advice on passing their own laws on immigration.

Thousands opposed to the measure marched in cities across the state, with many calling for a boycott of Arizona. Protests throughout the nation called on Arizona to repeal the law. Smaller demonstrations, mainly sponsored by Tea Party organizations, supported the anti-illegal immigration bill.

Fairy tales and legal rulings

While many appeals court rulings include sharp retorts between judges, the Ninth Circuit's SB 1070 decision features an unusual exchange based on Judge Bea's quoting "Through the Looking Glass."

Bea points to an exchange between Lewis Carroll's Alice (in Wonderland) and Humpty Dumpty on the meaning of words (p.  53), saying the majority misinterprets the law:

The majority has apparently mastered its Lewis Carroll:

"I don't know what you mean by 'glory,' " Alice said.

Humpty Dumpty smiled contemptuously. "Of course you don't—till I tell you. I meant 'there's a nice knock-down argument for you!' "

"But 'glory' doesn't mean 'a nice knockdown argument,' " Alice objected.

"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master—that's all."

Judge Paez was not amused (p. 9):

We have carefully considered the dissent and we respond to its arguments as appropriate. We do not, however, respond where the dissent has resorted to fairy tale quotes and other superfluous and distracting rhetoric. These devices make light of the seriousness of the issues before this court and distract from the legitimate judicial disagreements that separate the majority and dissent.

To which Bea riposted:

I am disappointed the majority does not take Lewis Carroll’s humorous example of word traducing seriously to explain how the majority’s use of “nothing” in 8 U.S.C. § 1357(g)(10) could be made to mean “everything.” 

‘Twas the saying of an ancient sage that humour was the only test of gravity, and gravity of humour. For a subject which would not bear raillery was suspicious; and a jest which would not bear a serious examination was certainly false wit.
Anthony Cooper, Earl of Shaftesbury, Essay on the Freedom of Wit and Humour, sec. 5 (1709).

However, it is not accurate to imply that recourse to the estimable Humpty-Dumpty is to slip the bounds of judicial argument. A quick Westlaw search shows six mentions in Supreme Court opinions of Hum- pty Dumpty’s views as to how the meanings of words can be changed, and another dozen in this court—including one case in which the author of the majority here concurred. See Scribner v. Worldcom, Inc., 249 F.3d 902 (9th Cir. 2001).

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