Federal appellate judges indicated Monday they might let Arizona start enforcing one of the most controversial sections of its new law aimed at illegal immigrants.
Members of the three-judge panel of the 9th Circuit Court of Appeals pointed out that the Obama administration is making a "facial" challenge to SB 1070. That requires the federal government to prove it is impossible to enforce the disputed provisions of the statute in any constitutional way.
But Judge Carlos Bea noted that one disputed provision says that when police have stopped someone they are required, when practicable, to make an effort to determine their immigration status with federal agencies if there is "reasonable suspicion" they are in this country illegally. Bea questioned whether that, by itself, is unconstitutional.
More to the point, Bea told Edwin Kneedler, the deputy federal solicitor general, he does not see how that is preempted by federal law.
Kneedler conceded there is nothing wrong with police officers, on their own, making the checks.
"Our position is not that they're not authorized to" check with Immigration and Customs Enforcement, he said. "Our objection is that the state statute mandates it."
Bea was not impressed.
"It's up to the state how they want to use their people," the judge responded.
Judge John Noonan added that if Congress doesn't want states requiring their officers to make such mandatory checks, there is a simple remedy: It can direct ICE to stop responding to the inquiries.
The questions by the judges indicate they are giving serious consideration to arguments by John Bouma, attorney for Gov. Jan Brewer, that U.S. District Court Judge Susan Bolton was wrong in July when she blocked the state from enforcing this provision of SB 1070.
Bolton concluded that the U.S. Department of Justice, which challenged the law, is likely to prevail when the case finally makes its way through the legal system. That would require a finding by the courts there is no way the law can be enforced in a constitutional manner.
But the judges appeared less swayed by other assertions by Bouma that Arizona is legally entitled to make it a violation of state law for anyone in this country illegally to seek work in Arizona, another section of SB 1070 that Bolton placed on hold.
"That is clearly consistent with congressional intent," Bouma argued. "Congress has made it clear that they're not supposed to be here."
Bea, however, pointed out federal law only makes it a crime to hire an illegal immigrant, not to be one working here. He said what Arizona is trying to do does not mirror federal law but imposes entirely new - and probably impermissible - state penalties.
For the same reason, the appellate judges also brushed aside arguments by Bouma defending another section of SB 1070 which says police can charge illegal immigrants with breaking state law because they are not carrying certain federal documents.
Brewer, who attended the hearing along with her in-house legal counsel, a deputy chief of staff and a press aide, said after the hearing SB 1070 is necessary because the federal government is not doing its job.
She acknowledged under questioning that the Obama administration is devoting more staff and resources to apprehending and deporting illegal immigrants.
"But it certainly isn't enough," she said. "We are seeing people still afraid down in the southern border to feel safe in their homes, which is something that we will not and cannot tolerate."
Bouma made some of the same arguments in court.
"Once an immigrant, an illegal alien, is in the United States, the chances of removal are so low that, basically, crossing the border is the same as crossing the finish line," he said.
That rhetoric did not impress Bea.
"Mr. Bouma, let's forget about what arguments you might address to a jury or to a legislature," he said.
Democrat Terry Goddard, Brewer's foe in today's election, blasted the governor for making the trip, saying her presence is neither legally necessary nor relevant.
"She is trying to convince people that she is protecting the border," Goddard said in a statement Monday. "But SB 1070 has no impact on border crime."
But Brewer said the legal challenge by the Obama administration names not only the state but also her.
"Most defendants show up in court when they're sued," she said. "And I'm here to represent the state of Arizona."
The appellate judges gave no indication when they will rule. Brewer said if the appellate court upholds any part of Bolton's injunction she will seek review by the U.S. Supreme Court.
Sen. Russell Pearce, R-Mesa, who crafted the law and also attended Monday's hearing, said he believes the nation's high court will side with Arizona on at least a 5-4 margin.
"This is an issue of a sovereign state doing what a sovereign state ought to do, and that's protecting its citizens from those who break the law," he said. Pearce also said the Obama administration is wrong in saying the state is trying to intrude into the exclusive purview of the federal government.
"We're not regulating, we're enforcing," he said.
In issuing the injunction in July, Bolton also said it appeared that letting Arizona enforce its own immigration laws would case "irreparable harm" to the foreign policy interests of the United States. That is based on claims by the Obama administration that Mexico and other countries will be less willing to work cooperatively with the U.S. if they believe their citizens are being harassed in Arizona.
Kneedler said there also is a fear that the safety of U.S. citizens abroad could be compromised if other countries retaliate because of SB 1070.
Bea, however, questioned that assertion. He noted that New Jersey has, by executive order, required its police officers to check the immigration status of at least some of those they stop, with a similar rule in Rhode Island.
"Has that led to our foreign relations being deteriorated?" the judge asked.
"There have been concerns addressed in recent years," Kneedler responded, though not necessarily because of what those states have done. Kneedler said, though, the Arizona law "has brought to the fore a broader concern" by foreign governments.