Arizona may not enforce key parts of immigration law, court rules

A federal appeals court ruled on Monday that key sections of Arizona’s tough immigration statute are preempted by federal law and may not be enforced, handing an important victory to the Obama administration and eliciting criticism from Arizona officials.

The three-judge panel said the key sections undercut a national scheme enacted by Congress and would complicate the conduct of US foreign policy.

The court also said the finding on preemption was warranted by the “threat of 50 states layering their own immigration enforcement rules on top of [federal immigration statutes].”

“There can be no constitutional application of a statute that, on its face, conflicts with congressional intent and therefore is preempted by the supremacy clause,” wrote Judge Richard Paez for the panel of the Ninth US Circuit Court of Appeals in San Francisco.

Under the Constitution, federal law is the supreme law of the land. When a federal law clashes with a state law, it is up to the courts to decide whether the state law is preempted by the federal law.

The Obama administration took Arizona to court last summer to block a state immigration enforcement measure that Justice Department lawyers said would frustrate federal immigration policies.

Monday’s ruling sets the stage for an expected appeal to the US Supreme Court and possible oral argument at the high court in 2012 – a presidential election year.

Arizona officials defiant

After reading the decision, Arizona officials were defiant. “I believe the Ninth Circuit decision will be overturned by the United States Supreme Court, and I pledge to make every possible effort to achieve that result,” said Arizona Attorney General Tom Horne.

Governor Jan Brewer said the appeals court ruling “does harm to the safety and well-being of Arizonans who suffer the negative effects of illegal immigration.”

The Arizona law, known as SB 1070, touched off a heated national debate last year over immigration policies and enforcement. Bills reflecting Arizona’s get-tough attitude were introduced in six states in 2010: Illinois, Michigan, Minnesota, South Carolina, Pennsylvania, and Rhode Island. None passed, according to the National Conference of State Legislatures.

But four other states, Georgia, Utah, Virginia, and West Virginia, passed laws beefing up identification procedures for immigrants.

The statute passed last year in Arizona sought to reduce that state’s significant population of illegal immigrants through a crackdown designed to encourage undocumented residents and workers to return home or flee to another state. The policy was called “attrition through enforcement.”

Racial profiling and discrimination

Among other provisions, it required state and local law enforcement officials during a valid stop to check the immigration status of anyone they suspected might be in the US illegally.

The Obama administration and immigrant rights groups objected to the provision, saying it would authorize racial profiling and discrimination.

Supporters of the get-tough effort said the law was written to compliment federal immigration statutes and merely sought to empower local officials to enforce provisions that federal immigration authorities were either unwilling or unable to enforce.

In addition to the status check provision, the law also required all immigrants to carry their federal immigration card, made it a violation of state law for unlawful immigrants to work in Arizona, and authorized Arizona authorities to conduct the warrantless arrest of anyone they had probable cause to believe had committed a deportable offense.

A federal judge in Phoenix blocked the four provisions in July shortly before the law was to take effect.

In upholding the federal judge’s ruling, the appeals court acknowledged that Congress had sought to foster cooperation between federal immigration authorities and state and local law enforcement officials.

But the court said Congress left the scope of that cooperation up to the discretion of the attorney general. It was clear from the lawsuit filed by the Justice Department seeking to enjoin SB 1070, Paez said, that Arizona’s efforts exceeded cooperation as defined by the attorney general.

“This cooperation is to occur on the federal government’s terms, not on those mandated by Arizona,” wrote Paez. “It is quite clear that Arizona is not ‘cooperating’ with the federal government in any sense of the word. Arizona does not seek intergovernmental cooperation – it seeks to pursue its own policy of ‘attrition through enforcement.’ ”

Dissenting opinion

Two of the circuit judges, Paez and John Noonan, found that all four of the state law provisions were preempted and unenforceable.

The third member of the panel, Judge Carlos Bea, agreed that two provisions were preempted, but he said two others (the immigration status check and warrantless arrest provisions) did not substantially conflict with federal immigration law and should be allowed to be enforced by state and local officials.

In his dissenting opinion, Judge Bea said the majority judges had confused the current policy goals of the “government” (the Obama administration) with the intent of Congress at the time it wrote the immigration statute.

“Congress envisioned, intended, and encouraged inter-governmental cooperation between state and federal agencies, at least as to information regarding a person’s immigration status,” Bea wrote.

Bea also objected to the majority’s decision that the state law was preempted in part because it “had a deleterious effect on the United States’ foreign relations.”

In his majority opinion, Paez said that friend-of-the-court briefs highly critical of Arizona’s law had been filed on behalf of foreign presidents and governments. They included: the presidents of Mexico, Bolivia, Ecuador, El Salvador, and Guatemala, and the governments of Brazil, Colombia, Honduras, Nicaragua, and the Central American Parliament.

In his dissent, Bea said overseas criticism alone did not amount to a foreign relations policy established by Congress that clashed with relevant provisions in the law. “A foreign nation may not cause a state law to be preempted simply by complaining about the law’s effects on foreign relations generally,” he said. “We do not grant other nations’ foreign ministries a ‘heckler’s veto.’ ”

'Internationalism run amok'

Governor Brewer called the foreign relations portion of the appeals court’s decision “internationalism run amok.”

“It’s worth remembering how we got here,” Brewer said. “For decades, the federal government has neglected its constitutional duty to American citizens by failing to secure the border. States like Arizona have borne the brunt of that failure.”

Opponents of SB 1070 praised the Ninth Circuit’s ruling. “Today’s decision sends a strong message to Arizona and any other state that is trying to overstep its boundaries by denying the most treasured constitutional rights through anti-immigrant laws,” said Marielena Hincapie, executive director of the National Immigration Law Center.

“Other states that want to walk down Arizona’s misguided and costly footsteps should take note.” Ms. Hincapie said. “State immigration legislation is unconstitutional, as the court of appeals now has resoundingly confirmed.”

Other analysts said the continuing litigation points up the need for Congress to take decisive action on national immigration reform.

“The opinion highlights that all roads to immigration control lead inexorably back to Congress,” said Angela Maria Kelley of the Center for American Progress. “It is high time for Congress to stop playing games and enact the type of broad reform our states and communities need.”