Yesterday, the Ninth Circuit Court of Appeals heard oral arguments from the federal government and the state of Arizona over the anti-immigrant law SB 1070. The appellate court is examining U.S. District Court Judge Susan Bolton's decision to enjoin its most controversial portions back in July.
SB 1070 makes it a state crime to be undocumented in Arizona, and gives law enforcement officers the right to question and investigate a person's immigration status while they're enforcing other state and local laws, and even civil codes. The law also demands that a person be kept in custody while law enforcement determines their immigration status. These are the provisions being examined by the appellate court right now.
The judges asked pointed questions to both sides, suggesting that they may both affirm portions of Judge Bolton's injunction on SB 1070 and reverse others. With John Bouma, the attorney representing Arizona and defending SB 1070, the judges seemed concerned about the portion of SB 1070 which makes it a crime to not carry around identification or proof of a person's immigration status.
At issue is whether a state has the right to even enforce SB 1070. The federal government has argued that much of SB 1070 is preempted--that is, that the state is overstepping its legal boundaries by creating and enforcing its own immigration laws because that power rests solely with the federal government.
Judge Carlos Bea questioned Arizona's "argument that a state can look at whether the federal government is enforcing laws, and if not, can enforce laws for the federal government." Judge Bea asked Bouma if he thought it permissible for the state of California to go after him if he failed to pay his federal income taxes.
"I don't think California would be particularly interested in enforcing federal income taxes," Bouma responded. But with respect to Arizona, and with respect to the issue of immigration, Bouma argued that circumstances were different "because Arizona is bearing the brunt of the federal government's failure to enforce [immigration laws.]"
The panel of judges seemed unconvinced about the constitutionality of the portions of SB 1070 that make it a state crime for a person to be caught without proof of their immigration status, and the portions of the law that make it a crime for undocumented immigrants to work in the state.
Yet when Edwin Kneedler, attorney for the federal government, stood before the panel, he got his own difficult line of questioning.
The federal government has argued that SB 1070 messes with its tiered immigration-enforcement scheme, which prioritizes the rounding up and deportation of people with criminal convictions on their record. SB 1070 would flood ICE offices with too many people who are not top priorities for deportation.
Kneedler also said that the federal government is worried that asking local law enforcement officials to investigate people's immigration status would harm their other policing work. But Judge Carlos Bea wondered why a state couldn't tell its law enforcement officers what to focus on and how they wanted their law enforcement to act. "It's how the state wants to use its people," said Bea.
Judge Noonan said to Kneedler: "You keep saying, 'A state officer is told to do something.' That's not a matter of preemption. If the federal government wants to preempt its field, Congress can say so."
Arizona Gov. Jan Brewer was also in attendance. She flew out to San Francisco for the hearing a day before Election Day back home in Arizona, where she is expected to beat Democratic gubernatorial nominee and Arizona Attorney General Terry Goddard easily.
Meanwhile, outside the downtown San Francisco courthouse, hundreds of people from both sides gathered to protest. The appellate court does not have a deadline to return with a ruling, but whatever the pane decides is certain to be appealed to the Supreme Court.
