Ariz. Presses Immigration Law In Appeals Court

Arizona Gov. Jan Brewer was in federal appeals court Monday, defending her state's controversial new immigration law against a challenge from the U.S. Justice Department.

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The state of Arizona hopes it will soon be able to implement its controversial immigration law. Parts of the law have been on hold since July when a federal judge, Susan Bolton, ruled that those elements infringed on the authority of the federal government.

Yesterday the state asked a panel of federal judges to make the law whole so Arizona can enforce it. NPR's Ted Robbins reports.

TED ROBBINS: On the eve of election day, Arizona Governor Jan Brewer was not in Arizona. She was at the court of appeals in San Francisco.

Governor JAN BREWER (Republican, Arizona): Most defendants show up in court when they're sued.

ROBBINS: Brewer was named as a defendant when the U.S. Justice Department sued the state to stop parts of the law known as SB 1070 from taking effect. Her decision to enact the bill turned out to be a good one politically. The Republican surged ahead in the polls last spring just after signing it. Yesterday, Brewer once again lashed out at the federal government because she says it's not enforcing existing immigration law.

Gov. BREWER: We would not be here today. We would not be here with Senate Bill 1070 if the federal government would have done their job, which they have not.

ROBBINS: Inside the courtroom, it was Brewer's lawyer, John Bouma, doing the talking. And the three judges on the appeals panel stopped him cold when he brought up anything vaguely political.

Mr. JOHN BOUMA (Attorney): Your Honor, Arizona is trying to deal with the problems that arise from a federal immigration system that even President Obama acknowledges is broken.

Judge CARLOS BEA (Ninth Circuit Court of Appeals): Mr. Bouma, let's forget about what arguments you might address to a jury or to a legislature. Tell us how Judge Bolton was wrong.

ROBBINS: Judge Carlos Bea and his colleagues wouldn't even discuss some of the provisions of SB 1070 which Judge Bolton blocked. She was right, they said, to block the section making it a crime for illegal immigrants to solicit work. Federal law only punishes those who hire illegal workers.

Judge BEA: The congressional intention was not to punish employees. Now, right or wrong, this three-judge panel must follow that rule.

ROBBINS: The judges weren't any easier on the Justice Department's lawyer, Edwin Kneedler. He argued that only the federal government can enforce immigration law under the Constitution. Arizona cannot require local law enforcement officers to question the immigration status of suspects. But Judge John Noonan pointed out that police all over the country voluntarily cooperate with the Feds on immigration matters.

Judge JOHN NOONAN (Ninth Circuit Court of Appeals): If the federal government wants to preempt this field, Congress can say so. We cut off communications. We don't want to have this information sought. But it hasn't done so. I would think the proper position would be to concede that this is a point where you don't have an argument.

ROBBINS: That was the strongest indication that the appeals court is inclined to vacate parts of the lower court's injunction.

Either way, whoever loses any part of the case is likely to ask the Supreme Court to hear it. In fact, the man who came up with the law, Arizona State Senator Russell Pearce, says he's looking forward to a Supreme Court hearing.

State Senator RUSSELL PEARCE (Republican, Arizona): You know, we will prevail at the Supreme Court level in a 5-4, possibly even a 6-3 decision.

ROBBINS: So you really want to push it to the Supreme Court?

State Sen. PEARCE: I absolutely do. This is a state sovereignty issue.

ROBBINS: And not just for Arizona. Legislators in nearly two dozen other states are contemplating laws similar to SB 1070. Monday's hearing was just on the injunction. No court has heard any arguments on the merits of the law itself. The appeals court could send the case back to the district level. A number of civil rights groups have also sued to strike down SB 1070, and those cases have not yet been heard.

Meanwhile, even though the law faces legal challenges, polls say it remains popular with a majority of Arizona voters.

Ted Robbins, NPR News.

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