PHOENIX (CN) – Gov. Jan Brewer asked the U.S. Supreme Court to allow Arizona to enforce SB 1070, the state’s controversial immigration law, parts of which a federal judge and the 9th Circuit have declared unconstitutional.
The Obama administration challenged the law in Federal Court, and on July 28, 2010, U.S. District Court Judge Susan Bolton enjoined enforcement of several parts of it.
The law required state and local police officers to check a person’s immigration status, required immigrants to carry identification documents with them, and made it illegal for undocumented workers to solicit employment in public.
The 9th Circuit upheld Bolton’s ruling in April this year, finding that Congress “explicitly required that in enforcing federal immigration law, state and local officers ‘shall’ be directed by the Attorney General.”
The Petition for Writ of Certiorari claims that in drafting the law, “Arizona was acutely aware of the need to respect federal authority over immigration-related matters.” Brewer claims that the 9th Circuit ruling “that states are completely foreclosed from enforcing federal law or from enacting state laws that prohibit conduct made unlawful by Congress could be supported only by the clearest of congressional statements,” and that federal immigration laws “expressly contemplate such cooperation and go so far as to compel federal cooperation with state efforts.”
Brewer asks the Supreme Court to allow Arizona to enforce the law for “three reasons”:
“First, this case implicates issues of extraordinary importance, as underscored by the federal government’s extraordinary decision to initiate a facial challenge to Arizona’s law before it could take effect. No one can deny that the problem of unlawful immigration is significant or that it has a disproportionate impact on border states. It is thus no small matter to conclude, as the Ninth Circuit did, that only the national government in Washington can address this problem.
“Second, the decision below creates an express and acknowledged circuit split over the preemptive force of the federal immigration laws. The Tenth Circuit views those laws as affirmatively encouraging cooperative enforcement by states; the Ninth Circuit reads such authorization for specific cooperation as negating any inherent state law enforcement authority.
“Third, the decision below is wrong and flatly inconsistent with this court’s precedents. While this court has repeatedly emphasized that outside of the First Amendment context a law capable of constitutional application is not facially invalid, the Ninth Circuit refused to even consider whether the relevant provisions of S.B. 1070 were capable of any constitutional application. While this court has emphasized that state efforts to cooperate with the enforcement of federal law are primarily governed by state law and are a healthy component of our federal system, the Ninth Circuit viewed such efforts with what amounts to a presumption of unconstitutionality. And while this court has routinely viewed parallel prohibitions-where state and federal law prohibit the exact same conduct-as not implicating
issues of preemption whether express or implied, the Ninth Circuit held that state efforts to facilitate enforcement or impose parallel prohibitions on conduct prohibited by federal immigration law are verboten.”
Brewer claims that 400,000 people live in Arizona illegally, and make up about 7 percent of the state’s workforce. She claims the number of undocumented immigrants has increased by about 10,000 per year from 2000 to 2010, and “the federal efforts remain demonstrably inadequate.”
Brewer adds that though the impact of illegal immigration on Arizona is unique, at least nine other states “have begun requiring that law enforcement officers conduct immigration status checks in various circumstances surrounding investigations, arrests and jail bookings.”
The petition cites new immigration laws in Alabama and Mississippi that have “targeted the supply side of the unlawful employment problem by prohibiting the unauthorized acceptance or performance of work by an alien,” and adds Alabama and South Carolina have “state-law prohibitions of violations of the federal laws.”
“For too long the federal government has turned a blind eye as this problem has manifested itself in the form of drop houses in our neighborhoods and crime in our communities,” Brewer said in a statement. “SB 1070 was Arizona’s way of saying that we won’t wait patiently for federal action any longer. If the federal government won’t enforce its immigration laws, we will.”
Brewer is represented by her General Counsel Joseph Sciarotta Jr.; Paul Clement, a former U.S. solicitor general now with the Bancroft law firm of Washington, D.C., with assistance from Viet Dinh; and by John Bouma with Snell & Wilmer of Phoenix.