Sometimes referred to as the “Papers Please” law, Arizona’s SB 1070 is the state law that requires local officials to check immigration status where reasonable suspicion exists that a person might be an illegal alien. Federal District Court Judge Bolton found that four provisions of the law violated the Supremacy Clause of the United States Constitution, Article VI, section 2. Based on that finding, she issued an injunction preventing the State of Arizona from implementing sections 2(B), 3, 5(C) and 6 of SB 1070. The state appealed that decision to the Ninth Circuit Court of Appeals.
The sections of SB 1070 at issue cover the following portions of the law:
• Section 2(B) provides that law enforcement, in the course of other duties, must determine the immigration status of persons where a reasonable suspicion exists that he/she may not be legally in the country, and that all persons’ legal status must be checked prior to being released following arrest or incarceration.
• Section 3 provides for state punishment of persons failing to meet federal registration requirements. Those penalties are in addition to federal penalties.
• Section 5(C) makes it illegal in Arizona for an illegal alien to work or apply for work. The federal law makes it illegal to hire illegal aliens, but does not impose penalties on individual illegal aliens for working if they can find work.
• Section 6 provides that “[a] peace officer, without a warrant, may arrest a person if the officer has probable cause to believe . . . [t]he person to be arrested has committed any public offense that makes the person removable from the United States”.
A three judge panel of the Ninth Circuit issued its ruling on Arizona’s appeal yesterday upholding Judge Bolton’s decision. The panel included Judge’s Paez, Bea and Noonan. Judge Paez wrote the majority opinion. Judge Noonan concurred, emphasizing the importance of foreign policy being the exclusive realm of the national government. Judge Bea concurred in the ruling that sections 3 and 5(C) were unconstitutional, but dissented as to sections 2(B) and 6, arguing that those sections were constitutional.
With the injunction remaining in place, Arizona must next decide whether it wants to seek review before the entire Ninth Circuit Court of Appeals sitting en banc (en banc means all judges of the circuit would hear and decide) or whether it will ask the U. S. Supreme Court to take the case without the en banc hearing by the Ninth Circuit.
If you are inclined to read court opinions, but don’t want to wade through 87 pages of legal nit picking over which section of the U. S. Immigration and Naturalization Act [INA] should be applied to the analysis, the most interesting read is Judge Noonan’s concurrence. It begins at page 43 of the opinion, or page 4850 of the official register. It’s about six pages and discusses in broader terms the general proposition of foreign policy as the exclusive province of the federal government and how Arizona’s SB1070 interferes with that exclusive role of the national government.
The opinion is here. I won’t go into great detail in this report regarding the appellate court’s reasoning. This case is going to the Supreme Court sooner or later. It is that opinion where the rationale will matter. The Ninth Circuit panel, in agreement with Judge Bolton’s decision, has set the stage.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.