Brewer to ask Supreme Court to lift SB 1070 injunction

Gov. Jan Brewer will ask the U.S. Supreme Court to lift an injunction that prevents the enforcement of much of Arizona's controversial SB 1070 immigration law.

"I've always known this legal fight would be a long one," said Brewer in a release following a morning press conference. "But now that this is the path we've chosen, I am confident Arizona will prevail."

Brewer was joined at a press conference Monday by state Attorney General Tom Horne and state Senate President Russell Pearce, R-Mesa.

By appealing to the Supreme Court, Brewer and Horne will bypass an opportunity for a full review by the Ninth Circuit Court of Appeals.

Last month, a three-judge Appeals Court panel refused to overturn a court order that blocks enforcement of SB 1070's requirement that police question people about their immigration status.

A Supreme Court appeal means "there is greater likelihood that legal questions surrounding SB 1070 will be resolved quickly," Brewer said.

The state has until July 11 to file a petition with the nation's highest court. An announcement of whether the case will be heard may come in September or October, Brewer said.

If the Supreme Court agrees to take the case, arguments could be held next spring.

The federal government sued the state last year to halt enforcement of the law, claiming it unconstitutionally infringed on federal authority to make immigration law.

The state's legal team argued that the federal government has failed to enforce immigration laws, and that Arizona must make its own.

Many of the law's provisions have never been enforced; they were enjoined by a federal judge the day before the law took effect last July.

"When faced with injustice, Arizonans will not sit idly by. We will act," said Brewer. "For decades, the federal government has neglected its constitutional duty to secure the border. It is because of that negligence that Arizona was forced to take action to protect its citizens via SB 1070."

"We need our nation’s top court to weigh in and lay the ground rules for what states can and cannot do," said Cochise County Sheriff Larry Dever and Pinal County Sheriff Paul Babeu in a statement.

"Then all the states will have clear guidance on exactly what border security efforts they can undertake in the face of the federal government’s shortfall," said the sheriffs, co-chairs of BorderSheriffs.com, a group that raises money to support SB 1070.

Ninth Circuit denied appeal

On April 11, 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.

While that decision means only that the law cannot be enforced while it is under review by the courts, it was 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 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.

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 discouraging 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 enforcement 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.

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.