Next steps for SB 1070 court fight

Posted: Updated:

PHOENIX – Now that the 9th U.S. Circuit Court of Appeals has refused to lift a judge’s injunction blocking several key parts of Senate Bill 1070 from taking effect, is the next stop the U.S. Supreme Court?

While it was met with sharply divided opinions, the decision of the appeals court was not really a surprise.

“I think people were expecting the 9th Circuit to uphold Judge Bolton’s ruling,” Barr said.

Four of the SB 1070 provisions that give the law its teeth are on hold, including the requirement that police question a person’s immigration status if there is reasonable belief that he or she is in the country illegally and the requirement that immigrants carry registration papers. Also on hold are the provisions making it a state crime for an illegal immigrant to look for or have a job and allowing the arrest of suspected undocumented immigrants without a warrant.

“The problem, as far as the 9th Circuit [is concerned], is that this area is pre-empted to the federal government,” Barr said. “Only the federal government can act in the area of immigration, just like only the federal government can print money, only the federal government can make treaties, only the federal government can declare war. …

“Here, what the 9th Circuit is saying is no matter what you think about Senate Bill 1070 – whether it’s a good idea or a bad idea – Arizona simply can’t legislate in this area. … They must follow the lead of the federal government.”

According to both the Arizona Constitution and the U.S. Constitution, federal law wins whenever there’s a conflict with state law.

Gov. Jan Brewer’s position is that federal law is not helping and in fact left Arizona to fend for itself when it comes to dealing with illegal immigration.

“That’s what the 9th Circuit says is off the table,” Barr said. “You don’t get to fend for yourself. If you have any problem with federal law, go to Congress to change it. … Arizona simply can’t pass its own laws in an area where the federal government has sole authority.”

It’s believed that Brewer will appeal to the U.S. Supreme Court. “Monday's decision by the 9th Circuit Court of Appeals to uphold Judge Bolton's suspension of key provisions of AB 1070 does harm to the safety and well-being of Arizonans who suffer the negative effects of illegal immigration,” she said.

The highest court in the land can decline to hear the case. If they choose not to hear the case, it will be sent back to Bolton, who will rule on other claims in the filing that have not been adjudicated.

The filing also contains a claim that SB 1070 violates the commerce clause of the Constitution. There’s also a claim that it violates equal protection. Once Bolton rules on those issues, the case could bounce back up to the 9th Circuit Court of Appeals. Several other states have considered laws similar to SB 1070, but most of those are foundering as those states wait to the see the outcome here in Arizona.

“I don’t think any state is wild about jumping into this area and getting sued by the federal government any time soon,” Barr said. “That 50 individual states or one individual state should have a foreign policy is absurdity too gross to be entertained,” wrote Judge John T. Noonan in the 9th Circuit’s ruling. “The local impact appears to call for local response. … The problems are local but our whole nation is affected. … Foreign policy is not and cannot be determined by the several states.”

Noonan also wrote that SB 1070 has become a symbol, both to those “sympathetic to immigrants to the United States” and to those “burdened by unlawful immigration” and frustrated by the current system.

“Being frustrated with the federal government is not a reason to pass an unconstitutional law,” Barr said.

Sen. President Russell Pearce, the author of SB 1070, described the legal fight over the controversial anti-illegal immigration law “a battle of epic proportions.”

Both those for and against SB 1070 have promised that they will continue to fight although no timeline has been set for the next steps in the process.