State to take SB 1070 to high court

Quick ruling unlikely; key parts of migrant law are now blocked
2011-05-10T00:00:00Z 2011-06-01T00:47:59Z State to take SB 1070 to high courtHoward Fischer Capitol Media Services Arizona Daily Star

PHOENIX - State officials will ask the U.S. Supreme Court to let Arizona begin enforcing the immigration-enforcement law enacted last year.

Attorney General Tom Horne said Monday that sending the question to nation's high court will be the quickest way to get the issue heard and the injunction lifted.

A three-judge panel of the 9th U.S. Circuit Court of Appeals last month upheld a lower-court decision that key sections of the law are likely illegal and should be placed on hold until a final decision can be made. The alternative was to seek review by the full appellate court.

Going directly to the Supreme Court, however, does not mean quick resolution. Horne said he does not expect a decision from the justices until the fall whether to even hear the state's appeal. And even if they do, it could be next spring before they hear arguments and rule.

SB 1070, approved last year, contains several provisions designed to give police more power to question and detain people they suspect are illegal immigrants.

The Obama administration sued, charging the legislation violates the exclusive right of the federal government to regulate immigration. Attorneys for the Justice Department said letting Arizona have its own laws also interferes with the ability of the federal government to manage relations with other countries.

A trial judge agreed, enjoining the state from enforcing key provisions. That includes a requirement for police to check the immigration status of those they have stopped if there is reason to believe they are in this country illegally.

Last month, a panel of the 9th Circuit, in a 2-1 ruling, left the injunction in place.

In seeking high-court intervention to let the statute be enforced, Horne acknowledged the state needs first to prove the law is likely constitutional.

In issuing injunctions, courts also weigh the "balance of hardships" among the parties. In this case, the state now needs to show the hardship from not being able to enforce the law outweighs the hardship placed on the federal government.

In its ruling last month, the majority of the 9th Circuit accepted the arguments of the Obama administration that allowing Arizona to pursue its own immigration policies undermines the ability of the federal government to set and conduct foreign relations. But state Senate President Russell Pearce said that ignored the other side of the equation.

"Rob Krentz was murdered during the debate of 1070," he said, referring to the Cochise County rancher killed last year, a case that has not been solved. "That's not a real hardship, I guess."

Pearce also said many police officers have been killed by illegal immigrants. And he said there also are financial issues, "$2.7 billion to educate, medicate and incarcerate those that are in this country illegally, just in Arizona."

Attorney General Horne agreed.

"The hardship to Arizona is something like 400,000 people are crossing the border illegally in the Tucson Sector every year."

Horne also said he will argue that the provisions in SB 1070 are not pre-empted by federal law.

For example, one section of the state law requires police, when they have stopped someone, to try to determine if that person is in this country legally if there is a reasonable suspicion they are not. But Horne said Congress specifically required Immigration and Customs Enforcement to respond to law enforcement inquiries about the legal status of those they have stopped.

Horne also took a swipe at the foreign-policy portion of the 9th Circuit ruling, in citing the concerns of officials of several foreign governments that filed legal briefs the court to bar Arizona from enforcing the law.

"We think it's an outrage that the 9th Circuit would let its decision be dictated by other countries rather than by United States constitutional law," he said.

Aside from the provision about police checking the legal status of those they have stopped, other sections that federal courts have enjoined include:

• Forbidding police from releasing anyone arrested until that person's immigration status is determined.

• Making it a violation of Arizona law for a noncitizen to fail to carry federally issued documentation.

• Allowing police to make warrantless arrests if there is a belief the person has committed offenses that allow them to be removed from the United States.

• Creating a new state crime for trying to secure work while not a legal resident.

Justice Department officials in both Washington and Phoenix declined to comment on the state's decision to seek Supreme Court review.

So far, most of the state's legal costs have been covered by donations. Gov. Jan Brewer said she already has taken in close to $4 million in donations, though about half of that has been spent.

On StarNet: Find more on SB 1070, border deaths, deportations and other immigration-related news at azstarnet.com/border

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