The Ninth Circuit ruled April 11 that Arizona cannot use police to check the immigration status of people they suspect of being undocumented. The 2-1 panel decision keeps in place a preliminary injunction issued in July by U.S. district Judge Susan Bolton.
One of the more interesting aspects of the Ninth Circuit Court of Appeals’ 86-page decision is the dissent because in it Judge Carlos Bea raises the politically touchy issue of U.S. judges deferring to foreign law. And this was snatched up by the Arizona’s Republican Gov. Jan Brewer as a rallying cry and reason to discredit the majority.
Bea wrote, “a foreign nation may not cause a state law to be preempted simply by complaining about the law’s effects on foreign relations generally. We do not grant other nations’ foreign ministries a ‘heckler’s veto.’”
Bea’s comments do not come in a vacuum. Supreme Court Justice Anthony Kennedy stirred up conservatives a few years ago by referencing international law on the issue of the death penalty. Since then some states and a few members of Congress have made runs at imposing limits on judicial citation of foreign law.
Judge Paez rejected Bea’s characterization of the opinion. The majority reasoned that individual states can’t run off and create their own foreign policy and Paez said it relied on Supreme Court for its rationale.
Judge John Noonan joined Paez with more forceful language. “That fifty individual states or one individual state should have a foreign policy is absurdity too gross to be entertained,” he wrote. The federal nation “must speak with one voice,” he said.
But Bea’s waving of the red flag of international law roused the conservative bulls. Brewer issued a statement calling it “outrageous that the Ninth Circuit court would grant foreign nations the de facto right to veto the duly-enacted laws of a sovereign state…”
That is not how the majority got to its conclusion. Paez said the state law interferes with federal regulation of immigration. What the panel did not do was rule on the ultimate constitutionality of Arizona’s law. That fight must wait for another day.
The main provision of Arizona’s law allowed police to make a “reasonable attempt” to determine the immigration status of anyone arrested. It also made it illegal for undocumented aliens to solicit work and authorized police to make warrantless arrests for felonies, misdemeanors and even traffic violations, if the person involved might be undocumented.
The case must go back to the federal judge in Arizona for a trial on the constitutionality of the law, although it could be appealed before that happens.
Brewer said the state will consider asking for 11 judges of the Ninth Circuit to reconsideration Monday’s ruling or going straight to the U.S. Supreme Court and asking the justices to lift the injunction.
Case: U.S. v. State of Arizona, 10-16645 (9th Circ.)