In a split decision, the Court of Appeals for the 9th Circuit has upheld a lower court decision to enjoin implementation of key provisions of S.B. 1070, the Arizona immigration law.  A copy of the 9th Circuit opinion is below.  The opinions was written by Judge Richard Paez and joined by Senior Judge John Noonan, Jr., with Judge Carlos Bea dissenting in part.

This was a sharply divided three person court.  Footnote 6 of the opinion highlights that the panel was not united, to put it mildly:

“6 We have carefully considered the dissent and we respond to its arguments as appropriate. We do not, however, respond where the dissent has resorted to fairy tale quotes and other superfluous and distracting rhetoric. These devices make light of the seriousness of the issues before this court and distract from the legitimate judicial disagreements that separate the majority and dissent.”

The key finding of the Court was that S.B. 1070 interfered in federal control of 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 DHS agents. As a result, Section 2(B) interferes with Congress’ delegation of discretion to the Executive branch in enforcing the INA. (p. 4824)

In a passage that will give rise to much attention, the Court cited protests by foreign countries over the law as evidence that the law had more than in incidental interference in federal government immigration policies:

“Thus far, the following foreign leaders and bodies have publicly criticized Arizona’s law: The Presidents of Mexico, Bolivia, Ecuador, El Salvador, and Guatemala; the governments of Brazil, Colombia, Honduras, and Nicaragua; the national assemblies in Ecuador and Nicaragua and the Central American Parliament; six human rights experts at the United Nations; the Secretary General and many permanent representatives of the Organization of American States; the Inter-American Commission on Human Rights; and the Union of South American Nations.

In addition to criticizing S.B. 1070, Mexico has taken affirmative steps to protest it. As a direct result of the Arizona law, at least five of the six Mexican Governors invited to travel to Phoenix to participate in the September 8-10, 2010 U.S.-Mexico Border Governors’ Conference declined the invitation. The Mexican Senate has postponed review of a U.S.-Mexico agreement on emergency management cooperation to deal with natural disasters.” (pp. 4826-4827)

In Footnote 14, the Court addressed the dissent’s objection to reliance on foreign protests:

14 Thus, Arizona’s extensive criticism of this court for permitting foreign governments to file Amicus Curiae briefs is misguided. These briefs are relevant to our decision-making in this case insofar as they demonstrate the factual effects of Arizona’s law on U.S. foreign affairs, an issue that the Supreme Court has directed us to consider in preemption cases.

Similarly, the dissent asserts that our reasoning grants a “heckler’s veto” to foreign ministries and argues that a “foreign nation may not cause a state law to be preempted simply by complaining about the law’s effects on foreign relations generally.” Dissent at 4880. As a preliminary matter.  We disagree with the dissent’s characterization of our opinion, as we do not conclude that a foreign government’s complaints alone require preemption.

Our consideration of this evidence is consistent with the Supreme Court’s concern that we not disregard or minimize the importance of such evidence.

Interestingly, and perhaps important as to whether the U.S. Supreme Court takes the case, is that the 9th Circuit majority recognized that its decision on one issue, whether police could arrest someone on a reasonable suspicion that the person was removable from the country, conflicted with the 10th Circuit:  “We recognize that our view conflicts with the Tenth Circuit’s.”  (p. 4845)  Since a conflict among the Circuits is one of the reasons the Supreme Court grants certiorari, this increases the likelihood the Supreme Court will take the case.

It is worth noting that while much of the fury directed at the law and its supporters was based on allegations of civil rights violations, the 9th Circuit did not base its decision on such matters, but limited itself to a preemption/interference analysis.

U.S. v. Arizona – 9th Cir Opinion 4-11-2011

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