Arizona state police arrest an immigration rights demonstrator at the… (Jack Kurtz / Associated…)
Reporting from Denver — A federal appellate court Monday upheld a judge's ban on the most controversial parts of a tough new Arizona immigration law, setting the stage for a showdown before the Supreme Court on how far a state can go in trying to expel illegal immigrants.
A three-judge panel of the U.S. 9th Circuit Court of Appeals agreed with a federal judge in Arizona who found that provisions of the law, known as SB 1070, were an unconstitutional intrusion into immigration and foreign policy, which is the prerogative of the federal government. The law was signed last year by Gov. Jan Brewer, who argued that her state was overrun by dangerous illegal immigrants. Critics contended it would lead to racial profiling.
In a partial dissent, one judge argued that a key provision, which requires police to determine the status of people involved in traffic stops whom they suspect are in the country illegally, was constitutional. But that stance did not sway the majority, making the ruling a victory for the Obama administration, which challenged Arizona's law in court last year.
The administration "couldn't have asked for more in the results of the ruling or the reasoning of the ruling," said Peter Spiro, a law professor at Temple University who has closely followed the case.
Brewer and Arizona Atty. Gen. Tom Horne issued a statement criticizing the ruling. They did not say, however, whether they would appeal it to a full panel of the 9th Circuit or straight to the Supreme Court. The top court is already considering a challenge to another Arizona law that dissolves businesses that repeatedly hire illegal immigrants.
"I remain steadfast in my belief that Arizona and other states have a sovereign right and obligation to protect their citizens and enforce immigration law in accordance with federal statute," Brewer said.
Civil rights groups and immigration advocates were jubilant.
"We're really glad to see the side of civil rights and the Constitution have prevailed," said Phoenix activist Lydia Guzman, who helped organize protests against the law before it was largely suspended in July.
All the judges — two appointed by Republican presidents and one by a Democrat — agreed that the state went too far in making it a crime to lack immigration papers in Arizona or to work there while being in the country illegally. They agreed that Congress and the courts have historically reserved the ability to penalize illegal immigrants for the federal government.
Judge Richard Paez, who was appointed by President Clinton and wrote the majority opinion, argued that requiring police to perform immigration enforcement makes it impossible for the federal government to regulate immigration.
"By imposing mandatory obligations on state and local officers, Arizona interferes with the federal government's authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed [immigration] agents," Paez wrote.
Judge John T. Noonan, an appointee of President Reagan, wrote a separate concurring opinion emphasizing that Arizona had clearly tried to create its own immigration — and, therefore, foreign — policy. He noted that a number of countries protested the law, which begins by stating that "attrition through enforcement" is now the state's policy.
"It would be difficult to set out more explicitly the policy of a state in regard to aliens unlawfully present," Noonan wrote. "Without qualification, Arizona establishes its policy on immigration."
But Judge Carlos T. Bea, an appointee of President George W. Bush, contended in his partial dissent that Arizona had a right to tell its police to check immigration status because Congress had clearly authorized local police to aid in immigration enforcement. Bea, a native of Spain who was nearly deported from the United States before winning his citizenship, also warned against giving foreign governments a "heckler's veto" by citing their objections.
Gabriel "Jack" Chin, a law professor at the University of Arizona, said the dispute between Bea and the other two judges on what a state can tell its police to do set the stage for a Supreme Court challenge. He said the finding that police need permission from the federal government to enforce immigration laws conflicts with rulings from some other appellate courts.
"This is a diffuse law with lots of bits and pieces that were thrown against the wall to see what sticks," Chin said. "Maybe they found a way to get that issue, which is near and dear to their hearts, to the Supreme Court."