Russell Pearce Denied by 9th Circuit on 1070; Judge Susan Bolton's Injunction Remains

Pearce and his nativist allies were served a defeat today by the Ninth Circuit
Pearce and his nativist allies were served a defeat today by the Ninth Circuit

State Senate President Russell Pearce, Governor Jan Brewer, and the forces of nativism here in Arizona and nationwide have suffered a crushing blow. The Ninth Circuit Court of Appeals has today upheld District Court Judge Susan R. Bolton's injunction of the most egregious parts of Senate Bill 1070.

You'll recall that on July 28, one day before the statute was to go into effect, Bolton enjoined four sections of the law dealing with cops asking for folks' "papers," making it illegal for legal aliens not to carry their "papers" with them, forbidding day-laborers from seeking work, and allowing police to conduct warrantless arrests if they believe a suspect has committed a crime that makes them removable from the country.

Bolton's ruling was in response to the lawsuit by the U.S. Department of Justice arguing that 1070 was unconstitutional and preempted by federal law. Governor Brewer's attorneys from the pricey firm of Snell and Wilmer appealed the injunction. 

Today, the majority of a three judge panel of the Ninth Circuit agreed with the federal government, keeping the injunction in place, and remanding the case back to Judge Bolton's court, where the lawsuit will continue.

Writing for the majority, Judge Richard Paez found that federal law did preempt Arizona's statute, and that there were grave foreign policy implications if the enjoined sections went into effect.

"The threat of 50 states layering their own immigration enforcement rules on top of the INA also weighs in favor of preemption," noted Paez at one point.

Significantly, Paez also found that Arizona peace officers do not have the "inherent authority" to enforce federal immigration law, as others have argued.

Paez writes:

"Arizona suggests, however, that it has the inherent authority to enforce federal civil removability without federal authorization, and therefore that the United States will not ultimately prevail on the merits. We do not agree. 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."

(You can read the entire opinion, here.)

In so concluding, Paez acknowledged that this view conflicts with the position of the Tenth Circuit Court of Appeals, which has ruled that local cops do have such authority. This may be an issue that will ultimately have to be decided by the U.S. Supreme Court.

"In sum, we are not persuaded that Arizona has the inherent authority to enforce the civil provisions of federal immigration law," writes Paez. "Therefore, Arizona must be federally authorized to conduct such enforcement."

Ultimately, Paez found that Judge Bolton had properly enjoined the four sections of the law at issue.

"Accordingly, we find that as to the S.B. 1070 Sections in which the United States is likely to prevail, the district court did not abuse its discretion in finding that the United States demonstrated that it faced irreparable harm and that granting the preliminary injunction properly balanced the equities and was in the public interest."

In his concurring opinion, Judge John Noonan explained at length how immigration is inextricably part of the foreign policy of the United States, and that Arizona was deliberately attempting to devise its own foreign policy by creating its own immigration laws.

"The foreign policy of the United States preempts the field entered by Arizona," writes Noonan. "Foreign policy is not and cannot be determined by the several states. Foreign policy is determined by the nation as the nation interacts with other nations. Whatever in any substantial degree attempts to express a policy by a single state or by several states toward other nations enters an exclusively federal field."

Noonan also observes that the stated purpose of SB 1070, as declared in the first section of the law, is "to make attrition through enforcement the public policy of all state and local government agencies in Arizona."

And this stated purpose of driving all illegal immigrants from the land is in effect a separate foreign policy as odds with that of the U.S. Government.

"If we read section 1 of the statute," Noonan writes, "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."

Judge Carlos Bea dissented in part, agreeing with his fellow judges on two sections of the law, and disagreeing with them on two others.

Bea does not believe that the section requiring police officers to determine the immigration status of those subject to a "lawful stop" (the "papers, please" portion of the law) is unconstitutional on its face. 

He also disagreed with the majority concerning the "inherent authority" of local police officers, finding that local cops do have the authority to inquire after immigration status and that the federal government has encouraged local police agencies to do so. 

"The majority's attempt to straight-jacket local and state inquiries as to immigration status to what `terms' the `federal government' dictates reveals the fundamental divide in our views. The majority finds the intent of `the government' decisive; look to Congress's intent--as required by Supreme Court preemption law."

Still, Bea agreed with the majority regarding two sections of 1070, the one regarding day-laborers and the one requiring all legal aliens to have their papers on them at all times:

"I concur with the majority that Section 3, which penalizes an alien's failure to carry documentation as required by federal immigration statutes, impermissibly infringes on the federal government's uniform, integrated, and comprehensive system of registration which leaves no room for its enforcement by the state. I also concur with the majority that Section (C), which penalizes an illegal alien for working or seeking work, conflicts with Congress's intent to focus on employer penalties..."

As to the foreign policy implications of 1070, which take up a good part of the majority's decision, Bea dismisses them outright:

"...a foreign nation may not cause a state law to be preempted simply by complaining about the law's effects on foreign relations generally. We do not grant other nations' foreign ministries a `heckler's veto.'"

Bea's dissent aside, the Ninth Circuit's decision is a historic rejection of Pearce's attempt to regulate immigration within the boundaries of Arizona, and it serves as a warning to other states eager to follow Sand Land's lead. 

The fight continues as the lawsuit drags out in federal court, yet the Ninth Circuit essentially found that the federal government is likely to prevail, and so the injunction stands. 

Governor Brewer's lawyers may appeal to the U.S. Supreme Court. But at what point will it become apparent to the general public that this adventure into the legal morass, one engineered by the hatemongers at the Federation for American Immigration Reform, has been deleterious to the state's economy, its image, and to the level of discourse over immigration in this state and in this country? I wonder.


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