A federal judge in Phoenix made “serious errors” when she agreed with the Obama administration and blocked key sections of a controversial Arizona immigration law, according to lawyers for Arizona Gov. Jan Brewer.
The lawyers made the comments in their opening legal brief asking a federal appeals court in San Francisco to overturn the judge’s order and allow the Arizona law, known as SB 1070, to take full effect.
Justice Department lawyers are expected to file a reply brief with the appeals court by Sept. 23. Oral argument at the Ninth US Circuit Court of Appeals is expected in early November.
US District Judge Susan Bolton ruled on July 28 that the Arizona law was preempted by federal immigration laws. She blocked provisions in the law that required all noncitizen residents to carry their federal immigration card, and that made it a state crime for an illegal immigrant to work in Arizona.
She also enjoined a provision that required Arizona officials to check a person’s immigration status whenever there was reasonable suspicion the individual was illegally present in the US.
Opponents charged that the law would lead to illegal racial profiling and interfere with federal enforcement priorities. Supporters said it was an attempt to enforce at the state level immigration laws on the books that are not being enforced by federal officials.
President Obama entered the debate on the side of opponents of the law, and the Justice Department filed a lawsuit to block its implementation.
In their brief, lawyers for Governor Brewer criticized Judge Bolton for uncritically accepting the arguments of Justice Department lawyers. Their legal brief says Arizona’s new law does not interfere with, and is not preempted by, federal immigration law. Rather, they say, it mirrors existing federal laws.
The lawyers draw a distinction between federal immigration law passed by Congress and new immigration policies adopted by the Department of Homeland Security (DHS) under the Obama administration.
“Congress has repeatedly encouraged cooperation and assistance from state and local authorities in enforcing federal immigration laws,” Phoenix lawyer John Bouma wrote in the governor’s brief. “And it is Congress – not DHS – that controls whether SB 1070 is preempted.”
Mr. Bouma said the judge applied the wrong standard for considering a facial challenge to a state law. He said that in order to succeed in a facial challenge, the judge must find that the suspect law can not be constitutionally applied and implemented under any circumstances.
“Instead, the district court improperly enjoined [a section of the law] based solely on its conclusion that [the section] is ‘likely to burden legally-present aliens’ and ‘likely to impermissibly burden federal resources,’ " Bouma wrote.
His brief also questions Bolton’s reliance on a 1941 Supreme Court decision, Hines v. Davidowitz, for the proposition that a state requirement that immigrants must produce immigration documentation when asked creates an impermissible burden on foreign residents who are lawfully present in the US.
The brief says that since the Hines decision was handed down nearly 70 years ago, Congress has rewritten immigration law to make it a crime for a foreign resident in the US not to carry a registration card.
The Arizona brief says SB 1070 is an attempt to enforce at the state level laws that the federal government has been unable or unwilling to enforce. “Rather than welcome this much-needed assistance, the United States sued” Arizona and the governor, Bouma wrote.
The brief says the federal government’s failure to effectively police the nation’s borders costs Arizona $2 billion a year. Undocumented foreign residents make up 17 percent of Arizona’s prison population. And roughly 50 percent of illegal immigrants in the US enter through Arizona, the brief says.