By Chad Burchard | April 19, 2011
A three-judge panel of the Ninth Circuit Court of Appeals voted 2-1 last Monday to uphold a district court’s injunction against portions of S.B. 1070—Arizona’s controversial anti-illegal immigration law.
The Ninth Circuit’s decision is the latest clash in a legal battle that began last year when Arizona Governor Jan Brewer signed S.B. 1070 into law. The Department of Justice (DOJ) filed suit in federal court seeking to enjoin enforcement of the measure on the grounds that it violated the Constitution’s Supremacy Clause, which states that federal law preempts any conflicting state law. Judge Susan Bolton presided over the case and granted the DOJ’s request.
Opponents of the law praised the Ninth Circuit’s decision to uphold Judge Bolton’s ruling. David Leopold, president of the American Immigration Lawyers Association, told the New York Times that “[i]n upholding Judge Bolton’s decision, the Ninth Circuit has signaled, in a loud and clear voice, that Arizona’s effort to regulate immigration law and policy directly violates the Constitution and will not stand.” [Marc Lacey, Appeals Court Rules Against Arizona Law, New York Times, April 11, 2011]
The law’s supporters, however, made it clear that the fight was far from over. “Monday’s 9th Circuit Court of Appeals decision against S.B. 1070 demonstrates the complete contempt that many federal judges have for the constitution and the democratic process,” the law’s principal sponsor, State Senator Russell Pearce, wrote in a recent column. Governor Brewer and state attorney general Tom Horne have said that they will appeal the ruling.
The appeal focused on the four provisions of the law that Judge Bolton enjoined: sections 2(B), 3, 5(C), and 6. The first (and most controversial) requires police, pursuant to a lawful stop or arrest for some other infraction, to inquire about a person’s immigration status if they have “reasonable suspicion” to believe that the person is an illegal immigrant. The second penalizes an alien’s willful failure to carry their identification papers (as they are required to do under federal law). The third penalizes illegal immigrants for knowingly soliciting or applying for work. The fourth and last authorizes police to make warrantless arrests when they have probable cause to believe that an alien has committed a deportable offense.
The Ninth Circuit upheld the lower court’s injunction against all of these provisions. The majority opinion was written by Judge Richard Paez. He was joined by Judge John Noonan who wrote a concurrence. Judge Carlos Bea concurred in the judgment regarding the second and third provisions but dissented with respect to the first and last. Judges Paez, Noonan and Bea were appointed by Presidents Clinton (2000), Reagan (1985) and George W. Bush (2003), respectively.
In upholding the injunction against § 2(B)’s much maligned verification requirement, the Ninth Circuit went much further than Judge Bolton, maintaining that virtually no state enforcement of federal immigration law is constitutionally permissible unless conducted pursuant to § 287(g) of the Immigration and Nationality Act (INA). Section 287(g), codified as 8 U.S.C. § 1357(g), was passed as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. It authorizes the Attorney General to “deputize” state and local police officers as immigration agents pursuant to a written agreement. The court interpreted this law to mean that “Congress intended for state officers to systemically aid in immigration enforcement onlyunder the close supervision of the Attorney General.”
Turning to § 3’s penalty for an alien’s failure to carry their identification papers, the court held that the federal government’s provision for the “registration, documentation, and possession of proof thereof” of aliens represents “a complete scheme of regulation” and would thus likely preempt Arizona’s attempt to “enforce additional or auxiliary regulations.” As for § 5(C)’s penalties for illegal immigrant employment seeking, the court’s reasoning was similar. Noting the absence of any similar federal law, the court surveyed the legislative history and concluded that “Congress’s affirmative choice not to criminalize work as a method of discouraging unauthorized immigrant employment, likely reflects Congress’s clear and manifest purpose to supersede state authority in this context.”
Finally, the court tackled § 6’s authorization of police to make warrantless arrests when they have probable cause to believe that an alien has committed a deportable offence, which would include civil violations of the immigration laws. The court rejected Arizona’s arguments that it possessed inherent state authority to make arrests for violations of the civil provisions of federal immigration law. Once again, the court turned to § 287(g) of the INA, arguing that it “neither grants, nor assumes the preexistence of, inherent state authority to enforce the civil immigration laws in the absence of federal supervision.”
As noted, Judge Bea dissented with respect to the court’s decision regarding § 2’s verification requirement and § 6’s authorization of warrantless arrests. He observed that § 287(g) specifically states that “[n]othing in this subsection shall be construed to require an agreement” in order for state or local police to “communicate with the Attorney General regarding the immigration status of any individual” or otherwise cooperate “in the identification, apprehension, detention, or removal of” unlawfully present aliens. Judge Bea marveled at the court’s ability to interpret “nothing” to mean “everything.”
He also charged that that the court’s decision ignored “clear Supreme Court precedent.” He pointed toMena v. City of Simi Valley, in which the Supreme Court recognized that state police have authority to inquire about immigration status, as “directly contradicting the majority’s conclusion that state officers possess no inherent authority to enforce the civil provisions of immigration law.” He repeated his earlier argument that the plain language of § 287(g) made it clear that Congress never intended for it to preempt states’ inherent authority to investigate and make arrests for violations of federal immigration law.
The Ninth Circuit’s ruling thus leaves the fate of the Arizona law uncertain. As both the majority and the dissent noted, the Tenth Circuit has held that state and local police do have inherent authority to enforce the civil provisions of federal immigration law, thus increasing the likelihood that the case will ultimately wind up before the Supreme Court.