A federal judge’s decision to enjoin key parts of SB 1070 from taking effect has been upheld by a three-judge panel of the Ninth Circuit Court of Appeals. Attorney Julie Pace provides legal analysis of the Court’s decision.
Ted Simomns: Good evening and welcome to "Horizon." I'm Ted Simons. The Ninth Circuit Court of Appeals today upheld a ruling by U.S. district court judge Susan Bolton that put four parts of Senate bill 1070 on hold. That ruling comes almost a year after Governor Brewer signed the controversial immigration bill into law. State Senate president Russell Pearce, the architect of SB 1070, said "The liberal makeup of the panel makes decisions like this utterly predictable." Pearce also said, "SB 1070 is constitutionally sound and that will be proven when the U.S. Supreme Court takes up this case and makes a proper ruling." Here now to talk about today's ruling is local employment attorney Julie Pace. Nice to see you again, thanks for joining us.
Julie Pace: Nice to see you.
Ted Simons: All right. What did the Ninth Circuit look at? What did they find?
Julie Pace: Yes. Well, we go back to July 28th of 2010 when judge Bolton looked at SB 1070 and she upheld six sections and those were -- she denied them, I should say. She issued what is called a preliminary injunction and stopped them going into the law. The federal government, the U.S. government came in and appealed four of those sections. Those went to the Ninth Circuit to review. And that's what we got a decision on today. So the Ninth Circuit has decided that those four sections should be upheld as being unconstitutional.
Ted Simons: Let's talk about some of those sections here. The first one requiring undocumented folks to carry papers.
Julie Pace: Correct.
Ted Simons: What the court is saying that's preempted by federal law?
Julie Pace: Preempt lied Federal law. So ut can't be done. It's up to the Federal government to determine who is here and who is removed from our borders.
Ted Simons: What about another one was requiring police to check status and hold until verified no matter how long it takes.
Julie Pace: Yeah, they basically again, the Ninth Circuit upheld these as being unconstitutional that it is up to the Federal government to make those decisions and make those rules. They also noted that there may be times obviously for Federal government to cooperate with local and state law enforcement officials, but not in the manner it was written in this bill. It was upheld.
Ted Simons: Another one dealt with police determining if a person committed an offense that could lead to deportation. Again, they don't necessarily think that's going to hold water.
Julie Pace: Correct. They have said it's unconstitutional. So four of the provisions that went up, the judges were unanimous on 3-0 on two of them but two of them there was a dissenter so there is some room for discussion as it moves up the ladder for the next review.
Ted Simons: Who was the dissenter and what was the thought behind it?
Julie Pace: The makeup of the panel, people ask me sometimes is we had three judges at the Ninth Circuit. One was Judge Nonnan, appointed by President Reagan. Judge Bea appointed by Ppresident Bush and he was the decider on two matters and then Judge Piaz was appointed by President Clinton. So again I think you're going to see some you know we'll see some-- We will see what happens as it moves up if it does move up for more appeals.
Ted Simons: I noticed that the court mentioned again the preemption by Federal law. But the idea of 50 states having 50 different immigration enforcement plans, along with Federal enforcement that was noted as well.
Julie Pace: Yeah. I think that the decision went a little further than some people might have expected because people have been looking with all these decisions and all the state laws that have been enacted to regulate immigration people have been waiting for some guidance by courts as to what is the role of states and the Federal government with this immigration issue? So this court today has two kind of sweeping comments. One is that it's a threat to businesses in the country to have 50 states enacting all of their own immigration laws. They made that comment. And the second comment that was really interesting that was a little broader than the decision is that they noted that there is no binding authority for states to be able to enact and regulate immigration laws. So those are two big decisions or comments in this decision.
Ted Simons: Were those a surprise? You think they went further afield than some folks had thought?
Julie Pace: Well, yeah. I think that saying there's no binding authority for states to enact these kind of laws and to force the Federal government to comply with what the state would like is interesting. I think it forces it right back to the Federal government and Congress to start dealing with the immigration and enact the laws to have uniformity across the country and stable for the business and communities and police officers to know what is expected.
Ted Simons: I notice the one judge who dissented said Congress may have, may have intended for states to help enforce some aspects of immigration law. Talk to us about what that means.
Julie Pace: I think that's the issue. There's this big tension about how far can local law enforcement go with states are frustrated with immigration to actually take over the Federal government's role with their Federal immigration system? So there is this tension. And I think that's what he's speaking to. That's what keeps, is going to keep moving up the ladder from legal cases to discussions to professor talking about it, how far is too much for local law enforcement? Do we expect too much from local law enforcement to try to take these on? Of course we all expect cooperation. But this went too far. And I think it will keep going in that direction. I think when the U.S. Supreme Court continues to look at these things and give guidance because the Federal government has preempted this area. It's, immigration is their area to control.
Ted Simons: When he mentioned the intent of Congress may have been X, Y, or Z, the intent of Congress behind, how much does that play into it?
Julie Pace: Well, that's a good point. In SB 1070, remember that there was a statement of intent in the beginning. And the state of Arizona said in that law it was the intent to have attrition, to force people to leave and get scare by the laws or threaten the by the law and leave on their own. Interestingly in this decision today, they said that's not Congress's intent and that's not been a spoken intent so it contradicts what the Federal government or Congress has said about their intent. Though they noted that statement of intent in SB 1070 contradicts and is inconsistent.
Ted Simons: Senator Pierce we read a couple of quotes, he also noted the Ninth Circuit is the most overturned circuit in the nation? Is that true?
Julie Pace: They're overturned quite a fair amount compared to other circuit courts.
Ted Simons: OK so as far as an appeals process by the state what do they do? They go to the full court? What happens?
Julie Pace: Generally, they have a choice. They can appeal directly or they can ask for an en banc review when they ask all the ninth circuit panelists to review the decision by the three panel court and then they will issue a decision either affirm or modify it or you might see some more dissenters or people who join. Then what happens is they issue their appeal to the U.S. Supreme Court and as you know the U.S. Supreme Court takes very little cases so it really has to be ripe and ready for review. And usually when there's a conflict between the Ninth Circuit and some other circuit on a key issue. So it's a challenge to get to the U.S. Supreme Court.
Ted Simons: Interesting. Timetable for all this? When the appeals process? Forget Supreme Court, just going through appeals.
Julie Pace: A few months for sure, three to six. It depends on if the Ninth Circuit takes the en banc review it can take a long time for them to issue a decision, so it can be three, six, a year out.
Ted Simons: OK and we should note the case is still alive. What we are talking about here is basically don't do this now until we figure out what's going on. Correct?
Julie Pace: Correct. SB 1070 has lots of parts that went into effect and is still law in Arizona but these four sections are stayed and they can't be enforced for now.
Ted Simons: Just for now as the case moves on.
Julie Pace: Right.
Ted Simons: All right. I think we got it. Thanks for joining us. I appreciate it.
Julie Pace: You bet.
