Arizona alien controls blocked
on Apr 11, 2011 at 4:57 pm
Ruling that states have no free-standing authority to impose their own controls on aliens who are in the U.S. illegally, the Ninth Circuit Court on Monday temporarily blocked key parts of Arizona’s controversial “S.B. 1070” alien control law — especially its requirement that police arrest and detain anyone they choose to single out until their legal status is determined. The Court interpreted that provision as being a sweeping detention law for everyone arrested, rejecting the argument by the state that arrest and detention would have to be based upon “reasonable suspicion” that the stopped individual was in the country illegally.
That section of the law, the majority said in the 2-1 panel decision, requires police in the state “to verify with the federal government the immigration status of all arrestees before they are released, regardless of whether or not reasonable suspicion exists that the arrestee is an undocumented immigration…Detention, whether intended or not, is an unavoidable consequence of [the section’s] mandate.”
Besides forbidding the state to enforce that section, the Circuit Court barred it from carrying out provisions making it a crime under state law to be in the state without legal immigration papers, barring any undocumented immigrant from seeking or holding a job in the state, and allowing police, without a warrant, to arrest anyone they believe to have committed a crime — in Arizona or elsewhere — that could lead to their deportation.
The ruling upholds a federal District judge’s order temporarily blocking the state from enforcing those four provisions of S.B. 1070, while the federal government’s formal court challenge to the law goes forward. Although the ruling only upheld a preliminary court ban on the four sections, the majority did declare that, as written, none of them could be enforced because they conflict with federal law on immigration and are “preempted by the [Constitution’s] Supremacy Clause.”  It rejected the argument by the state that there were specific ways in which the provisions could be validly carried out.
While state officials had argued strenuously that Congress had sought to enlist states in the enforcement of federal immigration laws, and that was all that Arizona was attempting to do, the Circuit Court said Congress had been firm in requiring that state participation had to occur only under the “close supervision” of the U.S. attorney general, not on their own. Congress, it concluded, did not intend to hand the states “a broad grant of authority…to systematically enforce the [federal immigration law] outside of the restrictions” on their activity. The states’ role, it said, was to be “on an incidental and as needed basis….Cooperation is to occur on the federal government’s terms, not on those mandated by Arizona.”
Arizona’s attempt to impose on police and state officers mandatory obligations “interferes with the federal government’s authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed agents [of the U.S. Department of Homeland Security].”
Arizona’s legislature, in passing the law, had said that it was designed to remove undocumented aliens from the state by a process of “attrition.” But, the Circuit Court majority said, only the federal government has the authority to “remove” aliens from the U.S. under federal law.
Circuit Judge Richard A. Paez wrote the main opinion, joined by Circuit Judge John T. Noonan, who also filed a concurring opinion stressing the impact of the Arizona law on U.S. foreign policy. Circuit Judge Carlos T. Bea agreed with the majority about the provisions making it a state crime to be without legal papers and barring aliens without papers from working, but dissented on the law’s grant of authority to arrest and detain individuals and to make warrantless arrests for committing deportable crimes.
In blocking the section of state law barring undocumented immigrants from working in the state, the Circuit Court relied in part upon its own ruling last year which had upheld an earlier Arizona law limiting punishing employers for employing those individuals — a decision that is now under review by the Supreme Court in U.S. Chamber of Commerce v. Whiting (docket 09-115). That case was argued before the Justices on Dec. 8, and a decision is awaited.
