Arizona to ask Supreme Court for permission to enforce SB 1070
PHOENIX -- State officials will ask the U.S. Supreme Court to let Arizona begin enforcing the immigration law enacted last year.
Attorney General Tom Horne said Monday sending the question to the full 9th U.S. Circuit Court of Appeals will be the quickest way to get the issue heard -- and, he believes, the injunction lifted.
A three-judge panel last month upheld a lower court decision that key sections of the law are likely illegal and should be placed on "hold.' The alternative was to seek review by the full appellate court.
Going directly to the nation's high court, however, does not mean quick resolution. Horne said he does not expect a decision from the justices until the fall whether to even hear the state's appeal. And even if they do, it could be next spring until they hear arguments and rule.
SB 1070, approved last year, contains multiple provisions designed to give police more power to question and detain suspected illegal immigrants.
The Obama administration sued, charging the legislation runs afoul of the exclusive right of the federal government to regulate immigration. Attorneys for the Department of Justice said letting Arizona have its own laws also interferes with the ability of the federal government to manage relations with other countries.
A trial judge agreed, enjoining the state from enforcing key provisions. That includes a requirement for police to check the immigration status of those they have stopped if there is reason to believe they are in this country illegally.
Last month, a panel of the 9th Circuit, in a 2-1 ruling, left the injunction in place.
In seeking high court intervention to let the statute be enforced, Horne acknowledged that the state needs first to prove the law is likely constitutional.
In issuing injunctions, courts also weigh the "balance of hardships' among the parties. In this case, the state now needs to show that its hardships from not being able to enforce the law outweigh the hardships placed on the federal government.
In its ruling last month, the majority of the 9th Circuit accepted the arguments of the Obama administration that allowing Arizona to pursue its own immigration policies undermines the ability of the federal government to set and conduct foreign relations. But Senate President Russell Pearce said that ignored the other side of the equation.
"Rob Krentz was murdered during the debate of 1070,' he said, referring to the Douglas rancher killed last year, a case has never been solved. "That's not a real hardship I guess.'
Pearce also said many police officers have been killed by illegal immigrants. And he said there also are financial issues, "$2.7 billion to educate, medicate and incarcerate those that are in this country illegally, just in Arizona.'
Attorney General Tom Horne agreed.
"The hardship to Arizona is something like 400,000 people are crossing the border illegally in the Tucson sector every year.
Horne also said he will argue that the provisions in SB 1070 are not preempted by federal law.
For example, one section of the state law requires police, when they have stopped someone, to try to determine if that person is in this country legally if there is a reasonable suspicion they are not. But Horne said Congress specifically required Immigration and Customs Enforcement to respond to law enforcement inquiries about the legal status of those they have stopped.
"I don't see any hardship there at all,' he said. "I see a great hardship to continue to not be able to help Border Patrol.'
Horne also took a specific swipe at one part of the 9th Circuit ruling dealing with the question of how the Arizona law affects foreign policy. He pointed out that the majority, in siding with the Obama administration, cited the concerns of officials of several foreign governments who filed legal briefs urging the appellate court to bar Arizona from enforcing the law.
"We think it's an outrage that the 9th Circuit would let its decision be dictated by other countries rather than by United States constitutional law,' he said.
Horne is not alone in that concern.
"A foreign nation may not cause a state law to be pre-empted simply by complaining about the law's effects on foreign relations generally,' appellate Judge Carlos Bea wrote in his dissent last month. "We do not grant other nations' foreign ministries a 'heckler's veto.' '
Aside from the provision about police checking the legal status of those they have stopped, other sections which federal courts have enjoined:
- Forbid police from releasing anyone arrested until that person's immigration status is determined;
- Make it a violation of Arizona law for a noncitizen to fail to carry federally issued documentation;
- Allow police to make warrantless arrests if there is a belief the person has committed offenses that allow them to be removed from the United States;
- Create a new state crime for trying to secure work while not a legal resident.
Officials from the Department of Justice in both Washington and Phoenix declined to comment on the state's decision to seek Supreme Court review.
There was never any question but that the state was going to appeal last month's 9th Circuit ruling. The only question was whether the state would seek review by the full appellate court or go directly to the Supreme Court.
State Sen. Steve Gallardo, D-Phoenix, a foe of SB 1070, said he has mixed feelings on the move. While he believes the issue has been divisive, Gallardo said going this route means a quicker decision from the nation's high court, a ruling he predicted would leave the injunction in place.
It also is virtually certain that, no matter what the Supreme Court rules, that will not be the end of the case. With or without an injunction, the Obama administration still wants a final ruling on the legality of SB 1070.
The state also has filed a countersuit saying the federal government is not doing its job of securing the border.
So far most of the state's legal costs have been covered by donations. Gov. Jan Brewer said she already has taken in close to $4 million in donations, though about half of that already has been spent.