Arizona Immigration law suffers a setback

By Reynold N. Mason JD   

Last Monday, the Ninth Circuit Court of Appeals upheld the Arizona District Court’s injunction of key provisions of S.B. 1070, Arizona’s new immigration enforcement law. The ruling is the result of the Obama Administration’s lawsuit against the State of Arizona, filed by the Justice Department, which sought to prevent the law from taking effect last July.  Monday’s ruling by the Ninth Circuit’s three-judge panel upheld the District Court’s injunction, ruling that the provision requiring law enforcement officers to verify the immigration status of individuals lawfully stopped if there is a reasonable suspicion that the person is an illegal alien—was preempted by federal law.

The court ruled that under Section 287(g) of the Immigration and Nationality Act (INA), state and local law enforcement officers could only enforce federal immigration law under the direction of the U.S. Attorney General within the confines of INA Section 287(g).   The court interpreted 287(g) to mean that in the absence of a written agreement with the Attorney General, state and local officers are only permitted to enforce federal immigration law on an “incidental and as-needed basis,” and that written agreements are required for the “systematic and routine cooperation”

Because Congress had, through federal immigration statutes, granted the Executive Branch wide discretion in the enforcement of immigration laws, the Obama Administration’s “priorities and strategies” preempts Arizona’s S.B.1070. Through its mandatory  directive to law enforcement officers, Arizona has “attempted to hijack a discretionary role that Congress delegated to the Executive.”
The court said that the “deleterious effect” on U.S. foreign relations is one factor weighing in favor of preemption.  Judge Paez, writing for the majority, said because certain foreign leaders and Administration officials publicly criticized S.B. 1070, the law was an obstacle to the Executive’s authority to control foreign affairs.

  The court viewed the law as a threat to Federal supremacy in immigration matters.“The threat of 50 states layering their own immigration rules on top of the INA” said the court “weighs in favor of preemption,”  It would essentially open the floodgates for other states to pass immigration legislation that would incrementally diminish DHS authority over immigration matters

In a compelling dissent, Judge Carlos T. Bea said that in his view, the law is constitutionally sound.   Under 287(g) Judge Bea said in his dissent, Congress expressly provided that states are free to communicate with the federal government regarding the immigration status of any individual and assist in the enforcement of immigration laws.  Judge Bea noted in his dissenting opinion ,that the majority opinion provides no statutory, regulatory, or case authority to support its decision that state and locals without 287(g) agreements could only enforce immigration laws in instances of “necessity” or only when “called-upon” by the government.

Immigration activists have heaped praise on the ruling. Thomas A. Saenz, President and General Counsel of the Mexican American Legal Defense and Education Fund (MALDEF) stated, “The Ninth Circuit decision stands as a strong warning to any state that is still considering enacting its own unconstitutional regulation of immigration by replicating or expanding upon Arizona's ill-fated S.B. 1070.” The National Immigration Law Center issued a statement in which it warns that: “Other states that want to walk down Arizona’s misguided and costly footsteps should take note: state immigration legislation is unconstitutional, as the Court of Appeals now has resoundingly confirmed.”

On the other side of the immigration ledger’ FAIR President, Dan Stein, remarked that “Monday's ruling turns the Constitution on its head, empowering the president to make immigration policy by executive fiat.” “The decision also leaves state and local governments at the mercy of an administration that, for political reasons, refuses to enforce the nation's immigration laws,” he said. Arizona Governor Jan Brewer says her state will appeal the decision either to a full panel of the Ninth Circuit or to the U.S Supreme Court.