The 9th Circuit Court upheld the preliminary injunction against Arizona SB1070!

The 9th Circuit Court upheld the preliminary injunction against Arizona SB1070!

by Chhayal on April 19, 2011

Last week, the 9th Circuit Court of Appeals upheld the preliminary injunction against 4 sections of Arizona SB 1070.  The legality of the four distinct provisions of SB 1070  at issue, each involved the same basic question: whether its enactment was “preempted” by federal law and therefore prohibited under the Constitution.  The Ninth Circuit found each provision explicitly conflicted with, or created an obstacle to the enforcement of, federal law.

  • Section 2(B). The court first upheld the injunction against the infamous provision requiring state police to check the immigration status of all individuals in custody and of any person stopped in public whom officers “reasonably” suspect of being in the country illegally. As we  previously speculated, the Ninth Circuit found the provision preempted by the same law responsible for the controversial 287(g) program. In a happily ironic twist, the court held that the existence of the program—which allows local police to enforce immigration laws under federal supervision—bars states from turning their officers into freelance immigration agents.
  • Sections 3 and 5(C). The court also upheld the injunction against two provisions whose legality was always considered dubious—one making it a state crime to fail to carry immigration papers, the other to work (or even solicit work) without federal authorization. All three members of the court found these provisions unconstitutional because Congress left no room for states to regulate the carrying of federal immigration documents, and because Congress decided to penalize employers, not employees, for the hiring of undocumented workers.
  • Section 6. Finally, the Ninth Circuit upheld the injunction against the provision authorizing state police to arrest noncitizens for any prior offense that could trigger deportation from the country, even if prosecutors previously declined to bring charges. In so doing, the court rejected Arizona’s argument that state police have “inherent authority”  to arrest persons for being unlawfully present in the United States. As the court acknowledged, a decision of the neighboring Tenth Circuit reached a different conclusion, increasing the odds that the challenge to SB 1070 will reach the Supreme Court.

Leave a Comment

Previous post:

Next post: