Arizona's new immigration law illegally conflicts with federal statutes and undermines the nation's foreign policy, attorneys for the U.S. Department of Justice argued Friday.
Assistant Attorney General Tony West argued to the 9th Circuit Court of Appeals that U.S. District Court Judge Susan Bolton acted properly when she barred the state from enforcing several key sections of the law. West said there is more than enough evidence to show the provisions are unconstitutional, a key element in getting an injunction.
But West, in legal papers filed Friday, also said there is more than enough evidence to show that letting Arizona begin enforcing SB 1070 would cause "irreparable harm" to the country. And that, he said, outweighs any potential harm Arizona would suffer while the questions of the law's legality work their way through the legal system.
Friday's response is in direct response to arguments made by attorneys for Gov. Jan Brewer, who wants the federal appeals court to dissolve the injunction. They argue there is no conflict between what Arizona seeks to do and federal law.
And Brewer herself has said the state is harmed by any delay in implementing SB 1070, having to continue to bear the financial burden of having an estimated 400,000 unauthorized people in the state and provide services ranging from education to incarceration.
A three-judge panel will hear from both sides on Nov. 1 at the federal courthouse in San Francisco.
At stake are some of the principal provisions of the law which Brewer signed in April. They were set to take effect July 29 before Bolton barred them.
• Requiring police officers to make a reasonable attempt to check the immigration status of those they have stopped;
• Forbidding police from releasing anyone they have arrested until that person's immigration status is determined;
• Making it a violation of Arizona law for anyone not a citizen to fail to carry documentation;
• Creating a new state crime for trying to secure work while not a legal resident;
• Allowing police to make warrantless arrests if there is a belief the person has committed an offense that allows them to be removed from the United States.
Technically speaking, the appellate judges will not be ruling on whether the challenged provisions are legal. The only thing before the court is whether Bolton exceeded her authority in issuing the injunction.
To do that, though, Bolton was required to conclude that the Department of Justice, which challenged the law, was likely to prevail when the case finally goes to trial. That, in turn, forced her to make at least a preliminary ruling that the sections at issue are illegal.
"The state may not establish an independent state enforcement scheme outside of federal control," West wrote, justifying Bolton's ruling. "A state does not have authority to supplement federal immigration law by criminalizing unlawful presence in the United States or attaching state-specific criminal penalties to the failure to carry federal registration papers."
West also pointed out that crafters of the state law did not hide its true purpose: It specifically makes "attrition through enforcement the public policy of all state and local governments in Arizona."
West also said there is more than enough evidence to prove the other part of what Bolton ruled: that failing to enjoin the law would harm the interests of the federal government.
He said it could result in "reciprocal and retaliatory treatment of U.S. citizens abroad," affecting the ability of people to travel to foreign countries. Beyond that, West said SB 1070 "antagonizes foreign governments and their populations ... likely making them less willing to negotiate, cooperate with, or support the United States across a broad range of foreign policy issues."
On a more practical level, West singled out the requirement for police to check the immigration status of those already stopped if they reasonably suspect that person of being in this country illegally. He said that "nondiscretionary directive" will overwhelm the centralized federal database and divert federal resources, as police stop people all the time not only for serious crimes, but also local laws like jaywalking, having a pet off a leash or riding a bicycle on the sidewalk.
Bolton's order did not affect several other provisions of the law which are now on the books.
• Creating a separate state crime making it illegal to transport or harbor an illegal immigrant;
• Making it a crime to stop a vehicle in traffic to hire a day laborer or for someone looking for work to get into a stopped vehicle;
• Requiring state officials to work with the federal government regarding illegal immigrants;
• Allowing Arizona residents to file suit against any agency, official, city or county for adopting policies that restrict the ability of workers to enforce federal immigration law "to less than the full extent permitted by federal law."