Attorneys for the State of Arizona and the US Justice Department appeared before the 9th Federal Circuit Appeals Court on Monday. with Arizona hoping to convince the 3-judge panel to overturn a lower court’s injunction on its controversial immigration enforcement law known as SB 1070. Arizona’s law has sharply divided Latino and non-Latino voters, making illegal immigration a key “wedge” issue that appears to have helped power Republicans to victory in Tuesday’s mid-term elections.
Judging from the tenor of last Monday’s preliminary hearing, the appeals court has extremely mixed feelings about the law – and about the lower court’s ruling. The composition of the 3-judge panel is also mixed. Two of the judges were appointed by Republicans, one by Ronald Reagan, the other by George Bush. The third magistrate is a Clinton apointee. But two of the judges turn out to be Latino, adding one further, possibly complicating, wrinkle.
Initial news reports have suggested that at least two of the Appeals Court judges – the GOP appointees – may be inclined to lift the lower court’s injunction, which would deliver a huge legal victory to Arizona. But according to most lawyers, the appeals court still has a range of options open to it.
Instead of a simple reversal, the panel, in the interest of preserving unanimity, could decide to send the case back to the lower court, asking that it find better grounds to support the injunction in the areas that the appeals panel might find objectionable. In that case, Arizona might not gain much legal advantage in the end.
In fact, two of the original provisions of the SB1070 that the lower court blocked are not even up for judicial review – a major victory for the Justice Department. One is the provision that makes “unlawful presence” of an illegal alien a state crime – punishable by a fine or even a jail term – and not just a federal civil violation for which the penalty is deportation. Another is the provision that makes it a separate state crime – also punishable by fine and jail time – to be working illegally in Arizona.
The Appeals Court won’t allow the two sides to address these two provisions because of the precedent it’s established in past related cases involving “pre-emption” disputes between federal and state authorities. The Court’s not actually ruling on the merits of the issue, lawyers say. It’s simply finding that it’s up to the lower court to issue its own ruling unimpeded by the appeals process. That means that the lower court’s injunction blocking implementation of these two key provisions won’t be overturned. Arizona was clearly hoping otherwise.
The Appeals Court judges also appeared to have little patience with Arizona’s argument that it could impose its own state criminal penalties on its residents, including immigrants, for failing to carry proper legal identification, which is technically, a federal offense. One of the Appeals Court judges waved off the Justice Department attorney from making additional arguments against this provision, suggesting that the panel already agreed with the lower court’s decision and that further debate was simply unnecessary.
The Appeals Court judges did, however, express deep concern about two other provisions of SB 1070 that the lower court had enjoined. That was crystal clear from the verbal grilling it gave the Justice Department’s attorneys on Monday. One SB 1070 provision requires Arizona police to question criminal suspects about their legal status based on a “reasonable suspicion” that they are in the country illegally. Another requires the federal government to respond to queries from Arizona police about the status of these suspects, and would allow Arizona authorities to detain the suspects pending the outcome of those queries.
The lower court had ruled that these provisions, like the others, usurped the federal government’s exclusive authority to make and enforce the nation’s immigration laws. But in Monday’s hearing the 9th Circuit judges repeatedly criticized the lower court’s logic, noting that existing federal law allowed states to take the lead in requesting enforcement support, and that federal “pre-emption” could not be invoked to defend a specific administration from responding to local enforcement requests that it deems unduly aggressive or potentially burdensome on federal resources, as the Obama administration maintains Arizona’s are, or would be.
In fact, the senior appeals court judge grew visibly annoyed with the Justice Department attorney who insisted on defending the lower court’s argument. In a stinging rebuke, the senior judge interrupted the Justice Attorney in mid-sentence and suggested that he simply concede the point, and stop wasting the court’s time.
What happens next is anything but clear. There is no deadline on the 9th circuit’s deliberations, and as already noted, even if the Court strongly objects to part of the lower court’s ruling, it has more than one option available. Simply lifting the injunction in the objectionable areas would certainly allow Arizona to step up its pursuit of illegal aliens, in theory, compelling federal cooperation. That could set up an explosive confrontation with the Justice Department which has previously warned Arizona that it will refuse to cooperate with the state if it tries to implements SB 1070. However, that was before it sued to block the law. It’s not clear what the Justice Department would actually do if the appeals court specifically allowed Arizona to proceed.
A partial lifting of the injunction also won’t sit well with civil rights groups who feel that Arizona’s “reasonable suspicion” criteria could well result in increased racial profiling and discrimination against Latinos. Thus far, however, neither the lower court nor the 9th circuit has shown much interest in the discrimination argument, in part because the Justice Department, despite the White House’s public rhetoric, hasn’t included the argument prominently in its filings to date.
But should the appeals court send the case back to the lower court, the judge there might refocus attention on the law’s potentially adverse affect on legal residents and citizens, including the threat of racial profiling, as grounds for a new injunction, lawyers say.
Whatever the 3-judge panel decides, both sides can ask the panel to reconsider its decision. They can also appeal the panel’s decision to the full 11-member Appeals Court, which wouldn’t include the original 3 judges, and could delay the case even further.
And of course, both sides could also appeal the full court’s decision to the US Supreme Court, if they so choose. In short, SB 1070 – already a potent symbol of partisan division on immigration – is likely to remain a political football for months, if not years, to come.
STEWART J. LAWRENCE is a Washington, DC-based immigration policy specialist. He can be reached at email@example.com.