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. Dennis Burke, United States attorney for the District of Arizona, discusses the federal government’s reaction to the ruling.
José Cárdenas: Thank you for joining us. I'm José Cárdenas. The ninth circuit Court of Appeals upheld a ruling by U.S. district court judge Susan Bolton that preempts four provisions of S.B. 1070 from going into effect. Here to talk about the ruling from the federal government's position is the United States attorney for Arizona, Dennis Burke. Dennis, welcome back to "Horizonte."
Dennis Burke: José, good to be back.
José Cárdenas: You were here before, we talked about the filing the lawsuit by the federal government.
Dennis Burke: Right.
José Cárdenas: The political considerations or at least the political attacks that were made at the time and the skepticism that many expressed to the strength of the government's position, you won. But it's a lengthy opinion, it's not easy to understand. Can you summarize what happened and what the meaning of the court's ruling is.
Dennis Burke: Yeah, we had a three-judge panel for the ninth circuit, which is the standard format when an appeal is first filed in the ninth circuit. The judges and the four provisions you mentioned that were in question that we were challenging the constitutionality under S.B. 1070, all -- three the judges agreed that two of the provisions were indeed unconstitutional and agreed with judge Bolton and upheld her ruling. And that we would prevail in the case on the merits. And then two of the provisions, section 2, the one that requires local law enforcement to check people's citizenship when arrested and the removal provision that allows local law enforcement to conduct arrests without warrants against someone who is subject to removal provision, those two provisions of S.B. 1070, two of the judges, in the majority, agreed with judge Bolton. From our perspective, it's where we want to be. It's the position we've been taking and we're confident we'll continue to prevail at any level on this case.
José Cárdenas: In terms of context, when we introduced this, I said you won, but this was in the context of a preliminary injunction and doesn't mean the lawsuit is resolve resolved by any means.
Dennis Burke: Right, we filed a preliminary injunction in front of Judge Bolton to enjoin it, to prevent S.B. 1070 from going into effect and obviously because of that prevailing in front of judge Bolton and the ninth circuit, it has not. In order to prevail, on a preliminary injunction, the law, the standards are for a judge to consider whether we would prevail on the merits at a full trial, whether the public interests and equity is on our side and whether there would be irreparable harm by not granting the injunction, those three standards, both judge Bolton and now the ninth circuit panel agreed with us, based on point, these provisions are unconstitutional, that we would prevail at a full trial on the merits on it. You're right in that respect. It's only an injunction, but because of these decisions, it's extremely likely we would also prevail at any full blown trial, we don't think there would be much discovery to be made.
José Cárdenas: And by discovery that would be the fact development process?
Dennis Burke: Right, our challenge was this was a facial challenge, that the act does not have to go into effect for the unconstitutionality to occur. That on its face, a facial challenge, on its face, S.B. 1070 is unconstitutional and from the ruling that judge Bolton and upheld by the panel of the ninth circuit, they agreed with us on that.
José Cárdenas: And unconstitutional on the grounds that this is preempted, a federal and not a state issue?
Dennis Burke: Right and the preemption doctoring it's based on the supremacy clause of the U.S. constitution and under the supremacy clause, the state, in this case, Arizona, and S.B. 1070, are preempted in the area of immigration law because at its heart, what S.B. 1070 was, and would be, if it went into effect, is a separate state immigration system and the result, if this was upheld and went into operation, is that all 50 states could have their own immigration systems and in a sense is reflected in this opinion, the concerns by the judges and by us is that you could end up having 50 separate foreign policies instead of one uniform foreign policy which is the role of the federal government.
José Cárdenas: And that seemed to be most troubling to the senior judge on the panel. Judge Noonan, a Reagan appointee -- judge Noonan, having Arizona what he referred to as its own foreign policy.
Dennis Burke: Judge Noonan, who is in the opinion with judge Paez. But he wanted to voice his opinion separately and from my perspective, to make it abundantly clear that the issue of foreign policy, the constitutional responsibilities of the federal government under foreign policy, that a subset of that is immigration law. And how you apply and control and regulate foreigners in our country is a responsibility to the federal government exclusively and believe and from his concurrence, he wrote separately just to make that point and really -- make that point and emphasize it and it's a controlling point of this whole ruling and why S.B. 1070 is unconstitutional.
José Cárdenas: It's a lengthy decision. 87 pages total and you have a 40-plus page majority opinion you then have almost an equal length dissent, strong by judge BEA. George walker bush appointee. Very well respected jurist. Very intense disagreement on a number of issues I want to talk about in a moment but the two issues he agreed with, what were those. The carrying papers?
Dennis Burke: Right, right. Under current federal law, a requirement for an alien to carry registration papers and what S.B. 1070 was trying to do was to criminalize the failure to carry those papers, to criminalize it under state law. Now, it's not a criminal violation under federal law, it's an administrative regulation. So the argument that S.B. 1070 proponents have been making, which I believe is inherently false, was that a state can just mimics whatever the feds do on -- mimic what the feds do on any state law and what the court made clear by all three judges on the panel, all three agreed, that's not true. That a state can't say we're going to mimic what the feds are doing, in an area -- that's an area left to the federal government to regulate and not the states, the states can't put their own criminal penalty scheme on top of a federal law.
José Cárdenas: And the other area of agreement amongst all three judges was the question of or - the provision under S.B. 1070 would criminalize seeking and/or obtaining employment if you weren't here legally.
Dennis Burke: Right, a separate part, your status in the country and how you got into the country is the issue of whether you're seeking work or working and under federal law that actual activity is not criminal behavior. But under S.B. 1070 it would and all three judges agreed with judge Bolton's decision that the states can't come in on top of a federal regulatory framework and where the federal government has already made decisions through congress and say separately, yeah, we're going to, under state law, make that a crime and so there was unanimous opinion on that amongst the three judges.
José Cárdenas: Where they disagreed, they disagreed sharply. You have in a lengthy opinion describing some portions of the majority decision as fantasy as -- quoting Humpty Dumpty and Lewis Carroll's Through the Looking Glass. This might - seem a little strange, but also the intensity of the describe that.
Dennis Burke: Yeah I was little surprised by that. It was not evident during the oral argument but it's definitely clear in the majority opinion in the dissent, a back and forth with regard to the language used, as you referenced, judge Bea in his dissent does has a literary reference to Lewis Carroll and the character Humpty Dumpty and when I say something it means what I want it to mean, to paraphrase Humpty Dumpty, and clearly Judge Paez didn't appreciate that and this might be a reflection of the intensity of this issue. And even amongst judges on the ninth circuit, how they on themselves were approaching making a decision on this, because it's very evident by the opinions that there was tensions between the two.
José Cárdenas: Apart from the exchange over the references to that ignoring the plain language of S.B. 1070 and making arguments that the government itself had not made with respect to some of these provision, how do you respond to his criticisms?
Dennis Burke: As you said, Judge Bea's opinions are long and he covers a lot of issues but I think from the pleas we've filed from the oral argument we presented in front. The ninth circuit and in front of judge Bolton, I think we've covered all the points he's raised and there's some overarching issues here of constitutional law and the roles of the federal and state government that S.B. 1070 impacts. And judge Bea has looked at -- it brings up points in the actual language of the bill that from our perspective and from the majority opinion, don't overcome their -- on the unconstitutional aspects of the law. That Arizona tried it set up their own immigration system and took no respect to the foreign policy constitution obligation of the federal government and then tried to mimic aspects of federal law ineffectively and in each aspect created a law from our perspective not only unconstitutional but would be extremely unworkable.
José Cárdenas: Now, what happens next? Both with respect to what's going on at the ninth circuit and I know there's developments in district court where other aspects of the court are proceeding.
Dennis Burke: We're back in front of judge Bolton in May so we have issues before her that we have to resolve with regard to the other aspects of the case. In fact, the state of Arizona has filed a counterclaim. They've sued the -- the state of Arizona has filed a counterclaim and we've filed a motion to dismiss that. The arguments of the state has made that the federal government has violated the 10th amendment by bringing a lawsuit against S.B. 1070. We filed a motion to dismiss this week and our point is what the state of Arizona has done is recycled arguments from the '90s where they were thrown out the court by the ninth circuit for challenging the federal government and its digression and its authority exclusive role to enforce immigration laws of the country.
José Cárdenas: Now quickly, at the ninth circuit level, one the judge Bea's criticisms was that the ninth circuit had taken a position contrary to the decision of the tenth circuit therby, I would think making even more likely that this case would indeed find itself at the U.S. Supreme Court.
Dennis Burke: Yeah and the state of Arizona through the state attorney general, somewhat indicated the prerogative to file an appeal before the Supreme Court. It is evident in the opinion from the ninth circuit there's a disagreement between Judge Bea and Judge Paez. From the dissent of the majority. How the tenth circuit ruled the authority of state law enforcement to effect aspects of the immigration law and the judge brings that up and says it should have been controlling and Paez and Noonan, we understand there was an disagreement in the interpretation of the federal law. We're the ninth circuit and we're confident of our reading of law and that's why we have separate circuits.
José Cárdenas: And on that note, we have to end the interview. There's a whole lot more going on in your office I know but we'll have to have you back some other time to talk about it. Thanks for joining us.
Dennis Burke: Thank you José.
Dennis Burke:United States attorney,District of Arizona;