Today, the Ninth Circuit Court of Appeals heard oral arguments on Arizona’s appeal of a lower-court ruling that blocked the most controversial provisions of SB-1070 from taking effect. The heated exchange that took place between the three judges and both the deputy solicitor general Edwin S. Kneedler and Arizona’s lawyer, John J. Bouma dropped a few notable hints as to how the judges will rule.
In July, federal district court judge Susan Bolton blocked the most significant sections SB-1070 from taking effect, arguing that “the United States is likely to succeed on the merits in showing that…[they] are preempted by federal law” and the “United States is likely to suffer irreparable harm” in the absence of an injunction.
However, at least one of the appellate judges, Judge John T. Noonan Jr., took issue with the federal government’s federal preemption argument. In a testy exchange, Noonan told Kneedler: “We’ve read your brief, I’ve read the District Court opinion, I’ve heard your interchange with my two colleagues, and I don’t understand your argument.” Noonan went on, “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.” Bea was similarly unimpressed, stating, “It’s up to the state how they want to use their people.”
Bouma didn’t get off easy either. Noonan shared concerns expressed by the federal government that the failure to immediately verify lawful presence could result in the prolonged detention of lawfully present immigrants and citizens. “I don’t know any provision of federal law that goes that far, now isn’t that getting into federal territory?” asked Noonan. “How can we construe it so that detention does not exceed what would be possible under federal law?” “How long would that be?” chimed in Judge Richard A. Paez. “Twenty-four hours? Forty-eight hours? A week?”
Judge Carlos Bea appeared to take issue with Section 5 of the law which criminalizes the solicitation, application for, or performance of work by an undocumented immigrant. Bea pointed to a previous court case which affirmed that congressional intention is not to punish employees. “I’ll tell you what the problem is Mr. Bouma, is that you’re arguing something which is simply foreclosed to us,” said Bea.
Based on today’s oral arguments, many are speculating that the Appeals court will not uphold the injunction on the part of the law which mandates police to inquire about the immigration status of anyone they stop, detain, or arrest if they reasonably suspect the person is in the country illegally. Meanwhile, it seems likely that the court will uphold the injunction on provisions relating to detention and the criminalization of certain immigration offenses that are considered minor under federal immigration law.
In the end, speculations are merely guesstimates. This past summer, one reporter dissected Bolton’s statements, concluding that Bolton seemed “skeptical” about the federal preemption argument and appeared to support the argument that certain provisions are unconstitutional because they violate the rights of U.S. citizens. In the end, Bolton supported both arguments when she enjoined parts of the law.
It’s also important to remember that today’s hearing wasn’t on the constitutionality of the law itself, but rather on whether certain provisions of the law should be allowed to take effect before a final decision is made concerning its overall legality. With that said, part of the court’s decision will be based on the “likelihood of success” which will likely preview any future decisions they will make on the law.