MIAMI (CN) — A federal appeals court heard arguments Thursday over a lower court’s decision to strike down parts of a Florida immigration enforcement law deemed racially motivated.
Florida Governor Ron DeSantis signed Senate Bill 168 into law in 2019 hailing the end of so-called sanctuary cities in the state by forcing police to use “best efforts” to enforce immigration laws and banning state and local agencies from putting in place policies limiting cooperation with federal immigration agents.
But the city of South Miami and several immigrant rights organizations sued the Republican governor and attorney general to stop the law from taking effect, arguing the measures trampled civil rights and did not lead to improved public safety.
U.S. District Judge Beth Bloom, a Barack Obama appointee, agreed and ruled parts of the law unconstitutional in a September 2021 opinion.
Attorney General Ashley Moody appealed to the 11th Circuit last spring, stating Bloom “committed numerous errors to arrive at the remarkable conclusion that the Florida Legislature had secret racist motivations in enacting SB 168.”
On Thursday, attorney Evan Ezray with the AG’s office took issue with the governor and attorney general being named as defendants in the suit.
The three-judge panel immediately seized on that idea during Ezray’s opening remarks.
“The plaintiffs’ own evidence is that the individuals who engage in this profiling are the local police, not the governor or the attorney general,” said Chief U.S. Circuit Judge William H. Pryor, an appointee of George W. Bush.
Senior U.S. Circuit Judge Stanley Marcus, a Bill Clinton appointee, also agreed the injunction does not “bind” local police.
“It is premised on the fallacy that somehow a federal court enjoins a state official like the governor or attorney general and somehow that wipes the state law off the books,” Marcus said. That’s just not how law works.”
“I could not have said it better myself,” Ezray agreed.
But Marcus also pushed back by asking if SB 168 expressly gives the governor a variety of powers to compel local and state officials to comply with the law.
“If, for example, a jailer in an unnamed county refused to cooperate with the INS [Immigration and Naturalization Service], refuses to turn in an undocumented alien who served his or her time … the governor could enforce provisions of the statute by suspending him,” Marcus said. “This statute seems to be designed and intended to give the governor the power to compel compliance. Why isn’t that enough here?”
“Because it relies on a highly speculative assumption that local officials would not comply with this law but for the risk that they would lose their job,” Ezray answered. “Our view is the local officials are going to continue enforcing the law because of that sworn oath to uphold the law, independent of whether the governor has the ability to suspend them.”
Ezray also questioned whether the organizations can prove the law has negatively impacted them, except by causing them to spend money on “know your rights” seminars. That should be reason alone to show they do not have standing, he said.
“Otherwise, what you would be saying is any organization that spends money has standing to challenge any law they don’t like,” Ezray said.
“That is spending to address a hypothetical and speculative harm and you can’t spend your way into standing,” the judge said.
In her remarks, attorney Kristen Loveland of the D.C.-based firm Akin Gump addressed why her clients, which include the Farmworker Association of Florida and the Florida Immigrant Coalition, chose the governor and attorney general as defendants.
“The Legislature wanted lower-level officials to know the law could be enforced against them,” Loveland said, adding that enforcement provisions in the statute has a “coercive effect” on how agencies will act.
But Pryor continued to press the issue.
“This lawsuit seems to be premised on the idea that if you enjoin the governor and the attorney general, that it somehow wipes the law off the books, or communicates to local law enforcement who are not actually parties to this litigation, but have done the kinds of things that these organizations complain about, will stop enforcing the law,” the judge said. “I don’t know where that comes from.”
The judges continued to eat away at Loveland’s time with similar questions about evidence of the negative effects to the immigrant rights organizations.
“We do have evidence of injuries to our organizations’ clients,” Loveland countered, pointing to an increase in those in federal custody after the passage of SB 168. “We see the effect of SB 168 on the ground and on the organizations’ members.”
Pryor and Marcus were joined on the panel by U.S. District Judge Kathryn Kimball Mizelle, a Donald Trump appointee sitting by designation from the Middle District of Florida.
The judges did not signal when they intend to issue a ruling.
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