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Federal appeals court signals skepticism over some objections to Arizona's illegal immigration law

November 1, 2010 |  3:18 pm

Mexico border Fence at Nogales

There are persistent rumors floating around of elections allegedly occurring all across the country Tuesday. So we interrupt Susan Sarandon's robo-calls on behalf of legalizing marijuana in California, to bring you this court update on the controversial Arizona illegal-immigration law's legal status.

A three-judge panel of the 9th Circuit Court of Appeals heard the case today in San Francisco. Arizona Gov. Jan Brewer was on hand as the most staunch defender of the state law, SB 1070, and one whose chances of reelection tomorrow have soared as a result.

The court's actual ruling on Arizona's appeal of a partial lower court injunction might not come for weeks. And, whatever it is, the losers will no doubt appeal the decision, likely all the way up to the Supreme Court, which could take years. So there's no Sig Alert on illegal desert border crossings quite yet.

The case is being watched extremely closely across the country. That's because 37 governor's chairs are....

...up for election Tuesday. Republicans like Brewer are expected to win many of those offices. Absent a clear legal victory, President Obama and Atty. Gen. Eric Holder will likely face a couple dozen more similar laws in coming months, challenging the feds' failure and ineffectiveness in securing the border with Mexico against illegal immigration, drugs, criminals and possible terrorists.

Initial indications from judges' questioning during today's hearing signal Holder might have a problem on his hand, at least with his objections to part of the state law.

"I've read your brief," Judge John T. Noonan, a Reagan appointee, told the lead Justice attorney, Edwin Kneedler. "I've read the District Court opinion.  I've heard your interchange with my two colleagues. And I don't understand your argument. We are dependent as a court on counsel being responsive. . . . You keep saying the problem is that a state officer is told to do something. That's not a matter of preemption. . . . I would think the proper thing to do is to concede that this is a point where you don't have an argument."Republican Arizona Governor Jan Brewer

The feds argue that federal law -- even one that goes long unenforced, as Arizona maintains -- preempts any state's effort to address the same problem.

The court's queries during the hour-long hearing seemed to question the federal objection to the Arizona law that requires local police to request background checks on suspected illegal immigrants who are stopped or arrested on probable cause for other reasons.

The other judges are Richard Paez, a Democratic appointee, and Carlos Bea, a Republican appointee. Both are of Latino descent.

Federal officials have argued this could produce a surge of background check requests that might overwhelm their system.

After the hearing Brewer's office issued the following statement:

Today the 9th Circuit Court of Appeals heard arguments regarding the State of Arizona’s request to lift the injunction put in place by the federal district court in July regarding enforcement SB 1070.

My counsel, John Bouma, argued that this case is about what a state – any state – can do about a failed federal immigration system that even President Obama acknowledges is broken. There are very serious crimes associated with this failure, including human smuggling, drug trafficking and other activities involving coyotes in Arizona, as acknowledged by Judge Bolton.  Arizona is on the front line in a fight against crime that is spilling over the international border. As noted in the court record, the federal government has essentially had to cede a vast territory inside the State of Arizona to the drug runners and human smugglers. 

With a federal government that cannot or will not do its job, Arizona determined that Arizona law enforcement officers would assist in the enforcement of federal immigration laws to the full extent permitted by federal law. The District Court applied the wrong legal standard of review and issued a preliminary injunction that preserves the status quo – a status quo that is unacceptable to the people lawfully present in Arizona, many whose lives are affected on a daily basis.

Although the judges asked challenging questions of both sides during this morning’s hearing, we are hopeful that after carefully considering the arguments, the 9th Circuit will lift the stay and allow SB 1070 to be enforced.  The health, welfare and safety of the citizens of Arizona are irreparably harmed every day the courts allow SB 1070 to be put on hold and the federal government refuses to enforce all immigration laws.

-- Andrew Malcolm

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Photo: Matt York / Associated Press; Associated Press (Brewer).