It should come as no surprise to anyone that a panel of judges of the Ninth Circuit Court of Appeals issued an order today refusing to lift the stay issued by a federal district court against Arizona’s immigration law. After all, the Ninth Circuit is the most often overturned appeals court in the nation, full of judges who routinely issue results-driven opinions that flout the law and precedents issued by the Supreme Court.
We all knew the litigation over Arizona’s law, which requires police officers to check on the immigration status of individuals they have arrested or detained for some other violation if the officers have a reasonable suspicion the individuals are in the country illegally, would end up in the Supreme Court. That Court overturns almost 90% of the Ninth Circuit’s opinions and one can almost always expect the Ninth Circuit to get the law wrong.
However, the dissent written by Judge Carlos Bea of the three-judge panel is well worth reading. He points out the numerous fallacies and mistakes made by the two judges in the majority. As Bea emphasizes, “Congress has provided important roles for state and local officials to play in the enforcement of federal immigration law.” This includes a mandate contained in 8 U.S.C. §1373(c) that the federal government respond to all inquiries from federal, state or local officials about the immigration status “of any individual.” Further, no agreement with the federal government is necessary for states “to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” 8 U.S.C. §1357(g)(10)(B). The idea that Arizona’s law is preempted simply makes no sense according to Judge Bea when these and other provisions of federal immigration law clearly show that Congress intended “that state officials should assist federal officials” in the enforcement of those laws.
Judge Bea also undermines the concurrence written by Judge John T. Noonan. Noonan’s opinion is that the Arizona statute is incompatible with “federal foreign policy.” But as Bea points out, the majority fails to identify a foreign relation policy established by Congress with which the Arizona law conflicts. In a seeming reference to the unprecedented filing of a brief in the case by Mexico, Bea says that “A foreign nation may not cause a state law to be preempted simply by complaining about the law’s effect on foreign relations generally. We do not grant other nation’s foreign ministries a ‘heckler’s veto.’”
The creative nature of the majority’s opinion is also emphasized by Bea when he points out that the majority’s analysis of the Arizona provision that allows the arrest of individuals who are removable for violation of federal immigration law “will come as a surprise to all parties involved in this case.” That analysis apparently “ignores the contentions in the filings before the district court, the district court’s rationale, the briefs filed in this court, and what was said by the well prepared counsel, questioned at our oral arguments.” In fact, those arguments were carefully avoided by the United States because the analysis “conflicts with the present policy of the Department of Justice’s Office of Legal Counsel.”
This badly-reasoned majority opinion written by a Clinton-appointee is typical. What will follow is either a request for an en banc review by the entire Ninth Circuit or the Supreme Court. That High Court will eventually make the ultimate decision in what may no doubt turn out to be the most important case on the enforcement of our immigration laws in a generation.