BREAKING NEWS! Ninth Circuit Affirms Preliminary Injunction of Arizona's SB 1070

Check out the Ninth Circuit's opinion in United States v. Arizona at Download Ninth circuit.  The result is not entirely surprising given that the Ninth Circuit affirmed the relatively straight-forward preliminary injunction entered by the district court on federal preemption grounds.

The appeal was heard by Ninth Circuit Judges John T. Noonan, Richard A. Paez, and Carlos T. Bea.  Judge Paez wrote for the majority, with a concurrence by Judge Noonan.  Judge Bea concurred in part and dissented in part.  The split between Judges Paez and Bea seemed apparent from the oral arguments in the case, although it was harder for me to speculate how Judge Noonan was leaning.  The depth of the split between the majority and dissent (as well as the tensions between the judges) is suggested by footnote 6 of the majority opinion:

 "We have carefully considered the dissent and we respond to its arguments as appropriate. We do not, however, respond where the dissent has resorted to fairy tale quotes and other superfluous and distracting rhetoric. These devices make light of the seriousness of the issues before this court and distract from the legitimate judicial disagreements that separate the majority and dissent."

Here is the introduction to Judge Paez's opinion, which foreshadows the court's holding:

"In April 2010, in response to a serious problem of unauthorized immigration along the Arizona-Mexico border, the State of Arizona enacted its own immigration law enforcement policy. Support Our Law Enforcement and Safe Neighborhoods Act, as amended by H.B. 2162 (“S.B. 1070”), “make[s] attrition through enforcement the public policy of all state and local government agencies in Arizona.” S.B. 1070 § 1. The provisions of S.B. 1070 are distinct from federal immigration laws. To achieve this policy of attrition, S.B. 1070 establishes a variety of immigration-related state offenses and defines the immigration-enforcement authority of Arizona’s state and local law enforcement officers.

Before Arizona’s new immigration law went into effect, the United States sued the State of Arizona in federal district court alleging that S.B. 1070 violated the Supremacy Clause on the grounds that it was preempted by the Immigration and Nationality Act (“INA”), and that it violated the Commerce Clause. Along with its complaint, the United States filed a motion for injunctive relief seeking to enjoin implementation of S.B. 1070 in its entirety until a final decision is made about its constitutionality. Although the United States requested that the law be enjoined in its entirety, it specifically argued facial challenges to only six select provisions of the law. United States v. Arizona, 703 F. Supp. 2d 980, 992 (D. Ariz. 2010).

The district court granted the United States’ motion for a preliminary injunction in part, enjoining enforcement of S.B. 1070 Sections 2(B), 3, 5(C), and 6, on the basis that federal law likely preempts these provisions. Id. at 1008. Arizona appealed the grant of injunctive relief, arguing that these four sections are not likely preempted; the United States did not cross-appeal the partial denial of injunctive relief. Thus, the United States’ likelihood of success on its federal preemption argument against these four sections is the central issue this appeal presents.

We have jurisdiction to review the district court’s order under 28 U.S.C. § 1292(a)(1). We hold that the district court did not abuse its discretion by enjoining S.B. 1070 Sections 2(B), 3, 5(C), and 6. Therefore, we affirm the district court’s preliminary injunction order enjoining these certain provisions of S.B. 1070."  (emphasis added).

Interestingly, the majority in several parts of the opinion highlighted that the proper way for state and local governments to assist the federal government to assist the federal government in enforcing the U.s. immigrations laws is through the process, including memoranda of understanding and training of state and local law enforcement in the U.S. immigration laws, provided by Immigration & Nationality Act § 287(g).

I found Justice Noonan's concurrence to offer powerful, yet succinct, support for the majority opinion.  In concluding, he observed that

"The Arizona statute before us has become a symbol. For those sympathetic to immigrants to the United States, it is a challenge and a chilling foretaste of what other states might attempt. For those burdened by unlawful immigration, it suggests how a state could tackle that problem. It is not our function, however, to evaluate the statute as a symbol. We are asked to assess the constitutionality of five sections on their face integrated by the intent stated in Section 1. If we read Section 1 of the statute, the statute states the purpose of providing a solution to illegal immigration into the United States. So read, the statute is a singular entry into the foreign policy of the United States by a single state. The district court properly enjoined implementation of the four sections of the statute."

KJ