At issue is whether US District Judge Susan Bolton was correct when she ruled that major sections of the Arizona law would have impermissibly interfered with the federal government’s authority to decide how best to enforce immigration laws. A stripped down version of the Arizona law took effect Thursday.
In authorizing the appeal, Governor Brewer said the problems prompting the Arizona law were caused by lax enforcement of immigration statutes by the federal government.
“America is not going to sit back and allow the ongoing federal failures to continue,” she said. “We are a nation of laws and we believe they need to be enforced.”
Brewer added, “I will not back down.”
On Wednesday, Judge Bolton issued a temporary injunction blocking enforcement of key parts of the new law, including a provision requiring law enforcement officials to check the immigration status of anyone during a routine stop whenever police had reasonable suspicion that the individual was an illegal immigrant.
Critics of the law, including President Obama, said the provision would likely lead to illegal racial profiling. The Justice Department joined other plaintiffs in a lawsuit and urged Bolton to block implementation of the new law.
But rather than press the racial profiling issue, Justice Department lawyers argued that the Arizona law impermissibly intruded into areas of authority (immigration and border security) reserved to the federal government.
State officials countered that the Arizona law was written to complement federal immigration statutes, not supplant them.
Bolton disagreed, ruling that several provisions in the state measure were preempted by conflicting federal laws and the policies of the Obama administration. The judge issued a temporary injunction, meaning that she would temporarily block implementation of parts of the law pending a full trial.
Under normal circumstances, the legal challenges to the Arizona law would now be subject to a trial before Bolton. But because of the importance of the issue, state officials took the somewhat unusual step of asking the appeals court to hear their appeal even before a trial has been held.
“This appeal involves an issue of significant importance – the State of Arizona’s right to implement a law its Legislature enacted to address the irreparable harm Arizona is suffering as a result of unchecked unlawful immigration,” the Arizona lawyers said in their brief to the Ninth Circuit.
They urged the appeals court to speed up its consideration of the case in light of the “serious criminal, environmental, and economic problems Arizona has been suffering as a consequence of illegal immigration and the lack of effective enforcement activity by the federal government.”
The governor’s lawyers asked for the court to embrace a schedule that would call for the state’s opening brief by August 12, a response by the Justice Department by August 26, and a reply by Arizona by September 2. They asked that the court schedule the case for oral argument the week of September 13.
If the Ninth Circuit declines to take up the case, or takes it up and upholds Bolton’s ruling, Arizona could then still file an expedited appeal to the US Supreme Court.
At the center of the case is a dispute over the intersection of federal authority to set immigration policies and enforce immigration law versus state government efforts to protect the health and safety of local residents threatened by a large influx of illegal immigrants by making passing a state law that mirrors several unenforced federal laws.
“If the federal government wants to be in charge of illegal immigration and they want no help from the states, it then needs to do its job,” Brewer said. “Arizona would not be faced with this problem if the federal government honored its responsibilities.”
She added, “Illegal immigration is an ongoing crisis the State of Arizona did not create and the federal government has refused to fix.”