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UPDATE: State appeals on alien law

FURTHER UPDATE 5:55 p.m.  The state of Arizona has now filed in the Ninth Circuit Court a motion for expedited briefing and hearing of its appeal of Judge Susan Bolton’s order Wednesday partially blocking the state’s new alien control law.  The motion in Arizona v. U.S. (Circuit docket 10-16645) can be read here.  It seeks to have all briefing completed by Sept. 2 and an oral argument the week of Sept. 13.

UPDATE Thursday 3:45 p.m.  The state of Arizona began the process of appealing this case to the Ninth Circuit Court by the formal filing of its notice, found here.  State officials have said they will seek expedited review at the Circuit Court and will pursue the case to the Supreme Court, if necessary.  (In the Ninth Circuit, the case is now docketed as 10-16645.)


The constitutional fight over Arizona’s new alien control law appeared Wednesday to be headed toward higher courts after a federal judge in that state blocked four significant parts of the law from going into effect as scheduled early Thursday.  Enforcement of a number of other sections was allowed — partly because the U.S. government did not challenge some, and partly because its attempt to stop others was rejected by the judge.  Whether the dispute will reach the Supreme Court is not yet clear.

State officials have the options of pursuing an appeal to the Ninth Circuit Court, or returning to the state legislature to try to salvage the main parts of the law by rewriting them.  As of now, an appeal seems the more likely option, giving state officials promise to vigorously defend the law at all levels.  At this point, the blocked sections of the law have not been struck down; rather, they are simply on hold while the constitutional case proceeds in U.S. District Court. Even so, appeals may be pursued if they challenge the specific order issued Wednesday afternoon by U.S. District Judge Susan R. Bolton of Phoenix.  (Below the jump are specifics of what was enjoined, and what was allowed to take effect.)

Here, in summary, are the parts of the law that state officials may not enforce for the time being:

** One section — probably the most controversial provision – would require police who stop someone for a suspected crime to try to find out whether the person is in the country illegally — provided they have “a reasonable suspicion” of an illegal entry.  The officer must verify immigration status before releasing the individual after arrest.

** Another hotly contested section that would for the first time make it a state crime for an individual to fail to apply for alien registration papers, or a failure to carry those papers with them.

** A section that would make it a crime for an alien not authorized to be in the U.S. to seek or perform a job.

** And, a new provsion allowing police to make an arrest, without a warrant, of a person if the officer believes that person has committed a crime that would be a basis for deporting that individual from the U.S.

Judge Bolton stressed that she would not block enforcement of the new law in all of its parts, as the Justice Department and civil rights groups had urged her to do.  The law itself provides that, if any part is struck down, other parts can remain in operation.  That, plus the fact that some of the new law simply changes existing law, led the judge to conclude that she had to analyze the measure section by section.

While granting the federal government’s plea to temporarily forbid enforcement of four provisions, the judge rejected the government request to do so for a section that creates a crime for transporting or harboring an illegal alien, or to encourage an alien to come to or live in Arizona if they are not authorized to enter, and for a section that changes existing law to allow police to seize vehicles used to transport or harbor illegal aliens.

On those two sections, Bolton ruled, the government had not made a case that they will be struck down when a decision is reached on their constitutionality, so she allowed the state to enforce those starting Thursday.

Bolton noted that the government had not asked for an order against enforcing ten other provisions.  Among the more controversial parts that may go into effect is a new law giving Arizona residents a right to sue any state official or agency adopting a policy that would lead to lax enforcement of federal immigration laws; such a lawsuit would assert that the official or agency had failed to work for enforcement to “the full extent” of federal law.

Another provision that she allowed to go into effect would create a crime to stop a car or truck to pick up day laborers and for day laborers to get into a car or truck if that would interfere with normal traffic movement.  Bolton also did not block four separate provisions that add to existing law that makes it a crime to knowingly keep an illegal alien on the job, to to intentionally hire an illegal alien.  Also allowed was a change in present law that requires businesses or others hiring workers to check on their eligibility to be hired.  While the government’s lawsuit against the Arizona law also challenged a change in state law that already makes it a crime to engage in “human smuggling,” the Justice Department told the judge it was not seeking to block that section at the present time.

Judge Bolton’s ruling dealt only with the Justice Department’s argument that federal law has displaced Arizona’s authority to try to regulate immigration policy.  She did not rule on civil rights groups’ claims that the new law will have a racial discriminatory effect, because it will lead to “profiling” of Latinos, whether they are citizens or not, and whether they are legally in the country or not.

In discussing the federal “preemption” issue, however, the judge did conclude that the law would appear to sweep so broadly that it would contradict federal policy against requiring  citizens or legal aliens to have papers showing that they are legally in the country.  A direct conflict with federal policy, the judge found, requires that a state law seeking to implement a different policy must yield.