By Ernest A. Canning on 4/12/2011, 9:05am PT  

Guest blogged by Ernest A. Canning

Arizona Gov. Jan Brewer and the GOP state legislature received another setback to their controversial anti-immigrant legislation on Monday. In a 2-1 decision, the Ninth Circuit Court of Appeal upheld an earlier U.S. District Court finding that puts the breaks, for now, on a number of provisions in the bill.

In their ruling in United States vs. Arizona, the court found a number of the most controversial provisions of the state's SB 1070 were likely preempted by the federal Immigration and Nationalization Act (INA). The decision leaves in place a preliminary injunction by the lower court barring enforcement of key provisions of the Arizona law.

The case does not, however, address the issue of whether SB 1070 gives rise to unlawful racial profiling.

The doctrine of preemption derives from the Supremacy Clause of the U.S. Constitution. If Congress intends federal law to "occupy the field" or if state law conflicts with a federal statute, it is said to be "preempted" by federal law, which means that the federal law, as the supreme law of the land, supersedes state law...

The Majority Opinion

The court's opinion was written by Circuit Judge Richard Anthony Paez, a Clinton appointee, and joined by Circuit Judge John T. Noonan, Jr., a Reagan appointee. Noonan also wrote a separate concurring opinion.

The court found that Section 2(B) of SB 1070 is likely preempted because it seeks to "usurp the Attorney General's role in directing state enforcement of federal immigration laws."

By imposing mandatory obligations on state and local officers, Arizona interferes with the federal government’s priorities and strategies in law enforcement, turning Arizona officers into state-directed DHS agents...Section 2(B) interferes with Congress’ delegation of discretion to the Executive branch in enforcing the INA.

Section 3 of SB 1070, which seeks to punish "unauthorized immigrants for their failure to comply with federal registration laws," the court said, is likely preempted because "states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or compliment, the federal law...."

Federal law likely preempts Section 5(c) which makes it unlawful for an undocumented immigrant to apply for work because Congress made an "affirmative choice not to criminalize work as a method of discouraging unauthorized immigrant employment."

Section 6, one of the most controversial of the legislation's clauses, permitting peace officers to arrest a person without a warrant if there is probable cause to believe they have committed a public offense that makes the person removable from the U.S., is likely preempted by federal law, according to the court, because "Federal law does not allow these officers to conduct warrantless arrests based on probable cause of civil removability."

Rejecting Arizona's argument, the court concluded:

[W]e simply are not persuaded that Arizona has the authority to unilaterally transform state and local law enforcement into a state-controlled DHS force to carry out its declared policy of attrition.

George W. Bush appointee dissents

Circuit Judge Carlos Tiburcio Bea, who was nominated to serve on the 9th Circuit by George W. Bush in 2003, wrote a dissenting opinion which essentially disagreed with the majority's interpretation of both SB 1070 and the INA.

Bea contended that Congress "expressed its intention that state officials should assist federal in checking the immigration status of aliens." He asserted that this is what SB 1070 accomplished.

Arizona's unelected governor expresses dismay

Back on Nov. 20, 2008, Brad Friedman warned President Barack Obama that if he appointed Arizona’s then elected Democratic Governor Janet Napolitano to head Homeland Security, he would produce a "nightmare" for Arizona; that, by law, Napolitano would be replaced by then Secretary of State Jan Brewer, whom he described as “a right wing loon” and one of this nation’s “worst” Secretaries of State, who played a key role in bringing unverifiable Diebold touch-screen voting systems into the state, long after they had been shown by computer scientists and security experts to be inaccurate, unreliable, and easily tampered with.

Brewer, undaunted by the 9th Circuit's ruling, stated:

I remain steadfast in my belief that Arizona and other states have a sovereign right and obligation to protect their citizens and enforce immigration law in accordance with federal statute.

Therein lies the core preemption issue --- whether Congress intended to adopted a single, unified national approach to immigration or desired 50 different approaches in which each state adopts its own immigration laws.

Unclear whether U.S. Supreme Court would take up case

Arizona has not yet announced whether it will file a petition for a hearing in the U.S. Supreme Court. As Phoenix attorney Stephen Montoya, who filed one of the original federal cases against SB 1070 observed, "The odds are against (the court accepting) it, but the odds are not...overwhelming."

One of the criteria the Supreme Court weighs on whether a hearing should be granted is whether there is a division amongst the U.S. Circuit Courts of Appeal on an issue.

While both the 9th Circuit, and the 6th in United States vs. Urrieta, have ruled that the states "do not have the inherent authority to enforce the civil provisions of federal immigration law," that conclusion is at odds with the 10th Circuit's decision in United States vs. Vasquez-Alverez.

If the Supreme Court refuses to hear the case, the 9th Circuit ruling will likely sweep the controversial SB 1070 into the dust bin of history.

* * *

Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).