The federal appeals panel that will hear Arizona defend its sweeping law against illegal immigrants Monday consists of two Hispanics, one of them an immigrant, and a Republican appointee who often sides with immigrants in federal disputes.
The judges chosen randomly to hear Arizona's appeal to the U.S. 9th Circuit Court of Appeals in San Francisco are John Noonan, an appointee of Ronald Reagan and a moderate; Richard Paez, a Bill Clinton appointee and the son of Mexican immigrants; and Carlos Bea, an appointee of George W. Bush who was born in Spain and was once ordered deported from the United States. He appealed and won.
"These are three judges who I think are pretty much in the judicial mainstream," said UC Berkeley constitutional law professor Jesse Choper. He predicted that Arizona would have a "relatively steep, uphill battle" because the federal government is given "exclusive power for immigration and naturalization."
The 9th Circuit and even the U.S. Supreme Court would probably be swayed by the federal government's contention that the Arizona law "improperly interferes with federal foreign policy," he said. "Mexico is very upset about this law."
Arizona captured the national spotlight in April, when Gov. Jan Brewer, a Republican, signed the law known as SB 1070, which requires police to determine the status of anyone they lawfully stop and also suspect is an illegal immigrant. The state's action led to nationwide protests and economic boycotts.
The Obama administration and civil rights groups challenged the law. The administration argued that it usurped federal authority to regulate immigration, and the civil rights groups contended it would lead to racial profiling.
Brewer and other state officials have defended the law as necessary to curb lawlessness by illegal immigrants from Mexico. The law garnered majority support in national polls.
In a ruling in July, a federal district judge in Phoenix struck down key portions of the law, including a requirement that police investigate a person's immigration status if the individual is suspected of being in the country illegally and a provision that makes it a state crime for a person not to carry immigration papers. The 9th Circuit is hearing an appeal of a court injunction on those provisions.
"I don't see any real problem with the decision that will cause a great deal of consternation or trouble with this panel," Choper said.
UC Davis law school Dean Kevin Johnson, an expert on immigration law, said he also expected the panel to affirm the lower court decision. "I don't think it is a slam dunk, but it is pretty clear," he said of the legal issues involved.
He noted that the Arizona law allows a private citizen to sue if police are not effectively enforcing it. "It's very much a change in the way immigration law is enforced," Johnson said.
Legal experts said Noonan often sides with immigrants in disputes with the federal government. Although Bea has personally faced the wrath of immigration law, he often rules for the federal government in immigration cases. Paez, the sole Democratic appointee, is considered a liberal.
UC Irvine law school Dean Erwin Chemerinsky called the U.S. District Court ruling by Judge Susan Bolton "very careful"; she upheld some of the law's provisions. He also said the Obama administration's challenge would carry weight because it was "relatively unusual" for the federal government to bring such a lawsuit.
But Chemerinsky was less certain about how the law might fare before the U.S. Supreme Court. "There is always the chance that the Supreme Court will reconsider earlier precedent, and this is certainly an emotionally charged case," Chemerinsky said.
A decision by the 9th Circuit panel could be appealed to a larger circuit panel and then to the high court. The three-member panel's ruling could come within weeks or months.