(CN) - Civil libertarians say Arizona is parading a wolf in sheep's clothing, but the Ninth Circuit seemed inclined Friday to overturn an injunction against an identity-theft law Arizona is using to target Mexican immigrants.
The laws under scrutiny took effect after Maricopa County Sheriff Joe Arpaio made illegal immigration a central tenet of his platform. Maricopa County's seat is Phoenix, the state capital.
Though Arpaio's wave of anti-immigrant fervor lubricated the passage of House Bill 2779, lawmakers billed the Legal Arizona Workers Act as means of clamping down on aggravated identity theft.
When coupled with House Bill 2745, a supplemental legislation passed the next year, the legislation became fodder for employment raids targeting Mexicans.
One provision of the law criminalizes intent to gain employment using another person's identity.
The civil rights group Puente Arizona challenged the constitutionality of both laws in a 2014 class action, prompting a preliminary injunction from U.S. District Judge David Campbell the following year.
Though Campbell said Arpaio's raids likely usurped powers belonging to the federal government, Arizona has argued on appeal that the state and U.S. governments both have interests in prosecuting identity theft, the stated purpose of the laws.
"Enjoining this law is causing real problems for the people of Arizona," Assistant Attorney General Dominic Draye told the Ninth Circuit at a hearing in San Francisco on Friday morning.
All three judges on the appellate panel appeared to find this argument plausible.
Judge Barry Silverman noted that identity theft is the "fastest growing crime in America," a conclusion also reached by the FBI and the Federal Trade Commission.
The problem requires both state and federal enforcement to address it, Silverman said.
Judge Richard Tallman added that the federal government sometimes prosecutes bank robbery, but this does not make the offense legal at the state level.
Puente's attorney, Jessica Vosburgh with the National Day Laborer Organizing Network, argued that lawmakers used the supposed anti-identity theft measure to disguise the state's assumption of powers it does not have.
"In the height of anti-immigrant fervor in that state," Arizona passed legislation that "intruded upon that field and created conflict with federal law," Vosburgh said, citing the Immigration Reform and Control Act, which Congress passed in 1986.
The third jurist on the panel, who joined the hearing by designation from Seattle, pressed Vosburgh on whether Arizona's laws would have been constitutional if the stated purpose of the statutes were not pretextual.
If Arizona's lawmakers said, "'My goodness, identity theft is affecting so many people in so many ways,' would that be OK?" U.S. District Judge Robert Lasnick asked.
Vosburgh replied that Supreme Court and Ninth Circuit precedent would require judges to "not only to look at the purpose [of the laws], but also the effects."
The judges did not indicate when they plan to rule.
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