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Under the U.S. Supreme Court: Saving Ariz.'s immigration law

By MICHAEL KIRKLAND   |   Aug. 8, 2010 at 3:30 AM
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WASHINGTON, Aug. 8 (UPI) -- While the death threats pour in against the federal judge who blocked key provisions of Arizona's controversial immigration law, the state is preparing to do battle to save those elements in the 9th U.S. Court of Appeals.

Early signs, looking at the legal Magic 8-Ball, are not good at the appeals court level. The phrase "Don't Count on It" floats by the ball's window.

Prospects in the U.S. Supreme Court, while far from ideal, are somewhat better -- assuming the justices agree to take the case if it comes to that. Here, the magic window shows, "Reply Hazy, Try Again."

The appeals court sent a clear message July 30, rejecting Arizona's request to "expedite" the case, signaling it didn't think the judge's preliminary injunction was doing irreparable harm to the state.

The state wanted the case heard extra quickly. The U.S. Justice Department, which challenged the law, opposed expedition,

As it is, the appeals court said it planned to hear the case in San Francisco during the week of Nov. 1 -- which means any decision would come down well after the Nov. 2 midterm elections, as SCOTUSBLOG.com points out -- with merit briefs arguing the substance of the case filed by Oct. 7. The state had wanted briefs filed by Sept. 2, with the appeals court hearing the case in the week of Sept. 12.

In addition to that early signal, the 9th Circuit has the reputation of being the most liberal appeals court in the country, mainly because the vast majority of its 29 judges were appointed by Democratic presidents, and any three-judge appellate panel selected from the 29 would reflect that.

The most conservative of the 13 appeals courts are the 5th Circuit headquartered in New Orleans and the 4th Circuit, headquartered in Richmond, Va., considered the preserves of Republican presidents.

The 9th Circuit has decided a number of appeals from the Board of Immigration Appeals, sometimes ruling for the BIA, sometimes ruling for immigrants trying to stay in the country.

But like all U.S. courts, the 9th Circuit has a long history of cases involving federal agencies, not states trying to control immigration policy.

The U.S. Supreme Court also has a long history of cases dealing with federal cases on immigration issues.

What probably will trip up Arizona at the appellate level, and at least cause problems for state officials at the U.S. Supreme Court, is something called the "supremacy clause" of the U.S. Constitution.

In no uncertain terms, the clause says federal law, not state law, is top dog.

"This Constitution, and the laws of the United States which shall be made in pursuance thereof," in other words, federal law, "and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding."

Last month, U.S. District Judge Susan Bolton used the supremacy clause to gut the Arizona immigration law wherever it disagreed with federal law.

However, it's not all dark for Arizona at the Supreme Court where a five-justice bloc consisting of four hard-core conservatives and moderate conservative Justice Anthony Kennedy holds sway.

While it may be hard to get around the supremacy clause, the high court has not been kind to illegal immigrants trying to use the U.S. Constitution.

In 1999's Reno vs. American-Arab Anti-Discrimination Committee, strong high court majorities produced a two-pronged decision: 6-3, that illegal immigrants could not use a constitutional right, in this case the First Amendment's guarantees of free speech, to avoid deportation; and 8-1, that illegal immigrants had to use the entire administrative process to avoid deportation before turning to the federal courts for help.

The 8-1 prong upheld 1996's federal Illegal Immigration Reform and Immigrant Responsibility Act, designed to speed up the deportation of illegal immigrants, some of whom had used the courts to delay deportation for years.

Conservative Justice Antonin Scalia wrote the majority opinion in Reno, which dealt with Palestinians living in Los Angeles who were accused of having ties to terror organizations.

Don't look to the Constitution as protection against deportation, Scalia told illegal immigrants.

"Even when deportation is sought because of some act the alien has committed, in principle the alien is not being punished for that act (criminal charges may be available for that separate purpose) but is merely being held to the terms under which he was admitted" to the United States, Scalia said. "And in all cases, deportation is necessary in order to bring to an end an ongoing violation of United States law. The contention that a violation must be allowed to continue because it has been improperly selected is not powerfully appealing."

But Scalia referred to "United States law," not state law. An even more useful precedent for Arizona may be 2008's Crawford vs. Marion County Election Board. In that case, a 6-3 Supreme Court majority upheld Indiana's law requiring a prospective voter to produce a government-issued ID, such as a driver's license, before being allowed to cast a ballot.

In the prevailing opinion, liberal Justice John Paul Stevens, now being succeeded on the high court by Elena Kagan, said the burden placed on some voters by the requirement was not, under high court precedent, enough to invalidate the law.

Stevens conceded some Republicans in the Indiana Legislature, who said they were worried about illegal immigrants casting state ballots, may have voted for the law for political reasons -- Democrats thought it discriminated against the poor -- but said: "If a non-discriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators. ... The application of the statute to the vast majority of Indiana voters is amply justified by the valid interest in protecting 'the integrity and reliability of the electoral process.'"

Still, if the state loses in the 9th Circuit and the Supreme Court agrees to review, the justices will be asked to determine whether the stricken provisions pre-empt federal law. Objectively they do. But the conservative justices might try to find a way to rule for Arizona, though in a favorite phrase of the late Chief Justice William Rehnquist, they would have to go "around Robin Hood's barn" to find a justification.

Almost everyone on the U.S. political scene concedes that the country's immigration process is broken, with at least 12 million illegal aliens hiding in the United Statest. The situation is particularly acute along the Mexican border, which Arizona shares.

In the 1960s, academicians said the massive protests by leftists represented a breakdown in the political process, which could not accommodate dissent. Arizona's draconian immigration law, whatever its constitutionality, can be considered a natural response to the failure of U.S. immigration policy. Lawmakers in several states, including Ohio, Maryland, Missouri, North Carolina and Colorado, reportedly are considering similar laws.

In Arizona's appeal, Gov. Jan Brewer said, "Illegal immigration is an ongoing crisis the state of Arizona did not create and the federal government has refused to fix." Arizona has a right, she said, "to implement a law its Legislature enacted to address the irreparable harm Arizona is suffering as a result of unchecked unlawful immigration."

Even the federal judge who issued the preliminary injunction blocking parts of the law conceded Arizona had enacted the law against "a backdrop of rampant illegal immigration, escalating drug and human trafficking crimes and serious public safety concerns ... "

But Judge Bolton said several key provisions of the "Support Our Law Enforcement and Safe Neighborhoods Act" were "pre-empted" by federal law.

Bolton temporarily blocked the section requiring police to "make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested" -- which critics said would lead to racial profiling.

She also blocked a section making it "a crime (if an immigrant fails) to apply for or carry alien registration papers" -- which critics said would lead to innocent U.S. citizens being jailed as illegal aliens -- and making it "a crime for an unauthorized alien to solicit, apply for or perform work."

Bolton said "the United States is likely to suffer irreparable harm if the court does not preliminarily enjoin enforcement of these sections ... "

She left in place provisions of the law she said did not pre-empt U.S. law -- and therefore were unaffected by the supremacy clause -- and those sections that were not challenged by the Justice Department.

Bolton said her court "by no means disregards Arizona's interests in controlling illegal immigration and addressing the concurrent problems with crime including the trafficking of humans, drugs, guns, and money. Even though Arizona's interests may be consistent with those of the federal government, it is not in the public interest for Arizona to enforce pre-empted laws."

Topics: Elena Kagan
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