On Monday, lawyers from the U.S. Justice Department (DOJ) tried to persuade the 9th Circuit Court of Appeals in San Francisco to keep in place an injunction again the law, which was approved last spring and took effect last summer.
“It is important not to allow a patchwork of state laws,” Deputy U.S. Solicitor General Edwin Kneedler told the three-judge panel, adding that SB 1070 could also hurt U.S. foreign relations.
Kneedler insisted that federal law pre-empts enforcement of state laws on immigration. That argument won the day in July, when U.S. District Judge Susan Bolton of Phoenix enjoined key parts of the bill, including a provision that would have made being an undocumented immigrant a state crime, subject to incarceration. Critics argued that the provision would lead to racial profiling.
But longtime legal observers who watched the hearing said the judges seemed to be leaning toward partially reinstating the provisions that Bolton threw out.
“This is going to be a mixed verdict,” David I. Levine, a law professor at UC hastins Law School in San Francsico, told the Los Angeles Times. He noted that the law may ultimately be rendered meaningless.
Governor Jan Brewer, who signed SB 1070 into law, is financing the cost of the appeal through a Border Security and Immigration Legal Defense Fund that has received more than $3 million in contributions from across the country.
John Bouma, the private attorney representing the state, argued that Arizona should be able to assist and complement the federal government’s immigration enforcement activities. "All Arizona is saying is play by the rules," he said. "Arizona is bearing the brunt of the federal government's failure to enforce [its own immigration policies]."
Anti-SB 1070 Lawyer Peppered with Questions
During the one-hour hearing, the judges peppered Kneedler with questions about Section 2 of the law, which would make it mandatory for local police to question the immigration status of people they stopped for questioning or arrested.
Judge Carlos Bea, appointed to the 9th Circuit by President George W. Bush in 2003, said that federal laws already give local police the right to communicate with the U.S. attorney general when coming in contact with undocumented immigrants. "It's how the state wants to use its people," Bea said. "The state can turn over an illegal to federal officials."
(In an interesting side note, Bea was born in Spain and during his student years in the 1960s, he was ordered deported from the United States. He appealed and won.)
"I've read your brief, I've read the district court opinion, I've heard your interchange with my two colleagues, and I don't understand your argument," Judge John T. Noonan, a Reagan appointee, told Kneedler at another point.
Kneedler countered that the problem with SB 1070 is that it requires police officers to ask about peoples’ immigration status and contact immigration authorities if they are undocumented. He argued that the Arizona statute could cause law enforcement to ignore federal government priorities to target immigrants who commit serious offenses first.
Attorney Daniel Ortega, who is involved as counsel in one of the lawsuits against SB 1070 on behalf of Mexican American Legal Defense and Education Fund (MALDEF), wasn't wiling to predict from the hearing how the judges would decide, but he worried that this provision would be reinstated.
“This would turn 12,000 local enforcement into immigration agents,” Ortega said.
Political observers and attorneys involved in several lawsuits challenging the constitutionality of SB 1070 say a decision from the 9th Circuit could take weeks or months.
Brewer Ready to Go to U.S. Supreme Court
Brewer has said that she is willing to take the law all the way to the U.S. Supreme Court. She was present at the hearing along with the measure's sponsor, Sen. Russell Pearce, R-Mesa, and Tom Horne, the GOP candidate for Arizona attorney general.
“We know this will survive,” Pearce said of the law. “[The 9th Circuit] is the most overturned court in the nation. We’ll win it in the Supreme Court.”
“SB 1070 impact has already been felt politically, and all of those who could use it to their benefit have used it to the extreme,” Ortega said, referring to Brewer’s presence in the courtroom.
Ortega was not alone in his criticism.
The current attorney general, Terry Goddard, a Democrat who is running against Brewer for governor, held a press conference on Sunday, taking some jabs at his opponent. The legal defense of any state bill challenged in court falls on the attorney general’s office, but Goddard decided to step aside after disagreements with Brewer’s legal team in June. Brewer said at the time that she didn't believe Goddard could defend the measure because his opposition represented a conflict of interest, and she hired a private firm to do the job.
“It does surprise a little bit she is there at all, because if I remember correctly, San Francisco is one of the cities that is boycotting the state of Arizona over Senate Bill 1070,” said Goddard, who running slightly behind Brewer in the latest polls. “Apparently, if she gets publicity, she puts aside the concern about the boycott.”
Goddard called on Brewer to address issues facing Arizona rather than leave the state on the eve of important elections. Specifically, he urged her to conduct an exhaustive investigation into security conditions at private prisons in the state, in the wake of the escape of three inmates from a privately run prison in Kingman, Ariz., last July who have been accused in the murder of a New Mexico couple.
Goddard pointed to Brewer’s staff—including political advisor Chuck Coughlin, president of High Ground Public Affairs, which also represents Correction Corporation of America (CCA), the country’s largest private-prison company —as evidence that she is more concerned with helping private business make a profit than with public safety.
CCA administers most private jails for immigration detention in Arizona.
NPR Investigation Links 1070 to Private-Prison Group
A National Public Radio investigation last week shed more light on the private-prison industry having a hand in the crafting of SB 1070 and giving monetary contributions to the 36 sponsors of the bill, including Pearce.
According to the NPR investigation, SB 1070 was largely conceived and drafted by a conservative business lobbying group in Washington, D.C., called the American Legislative Exchange Council, or ALEC, whose board members include state and federal elected officials as well as representatives of CCA. Pearce is one of the state legislators on ALEC’s board.
According to the NPR report, ALEC, and particularly CCA, played a pivotal role in conceiving, writing and naming the law that would become SB 1070.
Opposition to 1070 Hurting Some Politicians
While SB 1070 has catapulted Brewer and Pearce into the national spotlight, recent polls suggest that the bill is also taking a toll on politicians who opposed it and who have called for a boycott of the state because of its stance on illegal immigration, such as U.S. Rep. Raúl Grijalva (D-Tucson).
Some polls show that Grijalva—who has been in Congress for eight years—is running neck in neck with 28-year-old Republican Ruth McClung, a Tea Party favorite who has been endorsed by Sarah Palin.
“I seriously doubt Grijalva is in any trouble,” said Alfredo Gutiérrez, a former Democratic state senator and editor of La Frontera Times, a website focused on nationwide immigration issues that has been critical of the bill. He predicted that intensive voter registration drives among Latinos will make a difference.
“We’ve never seen anything like it,” he said. “[Usually,] when you go register voters, you try to talk them into it. This time, we stand in front of Ranch Market [a local grocery store] and people get in line to register or to get into early voting.”
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