Arizona's immigration law goes before appeals court

Arizona's controversial new immigration law has left one family in a frightened limbo, as they consider whether the mother should stay in Phoenix or try to leave without being arrested.
By Jerry Markon
Washington Post Staff Writer
Sunday, October 31, 2010; 8:14 PM

The divisive issue of illegal immigration will take center stage briefly Monday as the Obama administration returns to court in its effort to overturn Arizona's controversial new immigration law.

The U.S. Court of Appeals for the 9th Circuit will hear Arizona's appeal of a lower-court ruling that blocked the most-contested provisions of the law from taking effect. The law, signed in April by Gov. Jan Brewer (R), empowers police to question people whom they have a "reasonable suspicion" of being in the country illegally.

Amid a fierce debate over the measure, the Justice Department sought to overturn the law by taking the rare step of suing Arizona. Government attorneys won the first round in July when U.S. District Judge Susan R. Bolton, seated in Phoenix, put on hold provisions that would require police to check immigration status if they stop someone while enforcing other laws, allow for warrantless arrests of suspected illegal immigrants and criminalize the failure of legal immigrants to carry their registration papers.

Civil rights groups and federal lawyers had objected to those provisions in particular, while Arizona officials defended them as necessary to fight a tide of illegal immigration. Bolton allowed other portions of the law to take effect, including one making it a crime to stop a car to pick up day laborers.

Brewer, whose outspoken criticism of the federal lawsuit has helped her popularity at home, has vowed to take her appeal of the ruling to the U.S. Supreme Court. The 9th Circuit hearing in San Francisco is the next step, and legal experts say the case likely will wind up before the high court within several years.

The lawsuit ratcheted up the political and legal debate over the nation's estimated 12 million illegal immigrants, with Republicans condemning the administration and civil rights groups praising it for fighting a law that they contend targets Hispanics.

Talk of immigration has receeded somewhat in the runup to the elections, especially compared to the economy, but it has been a key factor in a number of races. Monday's argument, which Brewer plans to attend, will shine an even brighter light on the issue.

Legal experts said Brewer's attorneys may face a difficult task because appellate judges tend to defer to lower courts when reviewing an interim legal step such as an injunction. The only issue Monday is whether to uphold Bolton's order stopping parts of the law from taking effect while the federal lawsuit proceeds. The law's constitutionality will be decided later.

"Appellate judges have a tendency not to muck around in the district court's backfield too much,'' said Jonathan Benner, a Washington lawyer who has argued numerous cases involving federal-state conflicts. "Unless the appeals court believes that [Bolton] blew it, they are likely to uphold the injunction.''

It is also difficult to draw conclusions from the composition of the three-judge panel hearing the case. Judges John T. Noonan Jr. and Carlos T. Bea are appointees of Republican presidents, while judge Richard A. Paez is a Democratic appointee.

But Bea and Paez are of Hispanic descent, and it is Hispanics who are most upset about the Arizona law.

Legal briefs indicate that the two sides are likely to make arguments similiar to those they have advanced for months. The Justice Department says the Arizona statute is "preempted" by federal law because immigration enforcement is solely a federal prerogative.

The department sued, a Justice Department brief says, "to prevent the Arizona law from interfering with the federal government's exclusive authority to establish the Nation's immigration policy and priorities.''

Attorneys for Arizona wrote that the law was "carefully crafted" to ensure its constitutionality and was necessary because the federal government has failed to enforce immigration laws. "The harm that Arizona and its citizens are suffering as a result of illegal immigration is well documented and undisputed,'' the Arizona brief says. "The district court's injunction cannot stand.''

More than 25 briefs also were filed by other individuals and groups, reflecting the national divide over the issue.

Eleven states, 10 of them with Republican attorneys general, weighed in on Arizona's side, along with nearly 70 Republican members of Congress. Nearly 20 cities and counties nationwide are arguing on the administration's behalf, as is the government of Mexico.

"Mexico has an interest in protecting its citizens and ensuring that their ethnicity is not used as a basis for state-sanctioned acts of bias and discrimination,'' that country's brief says.

It is not clear when the panel will issue its decision. The losing side can ask the three judges to re-evaluate or seek review by the full 9th Circuit.

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