After a three-judge panel of the 9th U.S. Circuit Court of Appeals sided with the Justice Department in keeping parts of Arizona’s controversial immigration law from going into effect, some interpreted the ruling as a victory against states that would create what one advocacy group called a “racial reign of terror in which police racial profiling is mandated.” Others simply dismissed the decision as typical of a liberal court.
But the ruling was not unanimous and the nuanced views of the three judges expressed in the 87-page opinion illustrate the complex, political and sometimes contradictory nature of our tangle of immigration laws.
The judges reviewed four aspects of the law: requiring police to question one’s immigration status after a stop or on reasonable suspicion, giving them the power to arrest illegal immigrants for the sole purpose of deporting them, requiring immigrants to have their documents with them at all times, and making it a crime for illegal immigrants to work or look for a job.
Judge Richard A. Paez, writing the majority opinion, made clear that the case did not hinge on whether state and local law enforcement officials would apply the statute in a constitutional way — he said the court did not have to “respond where the dissent has resorted to fairy tale quotes and other superfluous and distracting rhetoric” — but on whether it was their place to even attempt to do so.
“Even state and local officers authorized ... to investigate, apprehend, or detain immigrants do not have the authority to remove immigrants; removal is exclusively the purview of the federal government,” Paez wrote. “We do not believe that Congress intended to grant states the authority to remove immigrants.”
Judge Carlos T. Bea disagreed, citing the exact same section of the law that specifies the ways in which state officials should assist federal officials in the “identification, apprehension, detention, or removal of aliens not lawfully present in the United States.”
In his partial concurrence and partial dissent, Bea scoffed at the idea that local law enforcement officials should take a hands-off approach. “Congress envisioned, intended, and encouraged intergovernmental cooperation between state and federal agencies at least as to information regarding a person’s immigration status for the proper and efficient enforcement of federal immigration law,” he wrote.
In an interesting aside, Paez extensively outlined how the Arizona law was in conflict with U.S. foreign policy and put the nation at risk on several fronts. He cited the nine Latin American countries that publicly criticized Arizona’s law, several international humanitarian organizations and the Department of Homeland Security’s contention that Arizona’s immigration law “is affecting DHS’ ongoing efforts to secure international cooperation in carrying out its mission to safeguard America’s people, borders, and infrastructure.”
Judge John T. Noonan, concerned about allowing a patchwork of independent immigration laws, backed him up. “What foreign policy can a federal nation have except a national policy?” he asked. “That 50 individual states or one individual state should have a foreign policy is absurdity too gross to be entertained.”
But Bea injected the street sense: “The majority would have us believe that Congress has provided the executive with the power to veto any state law which happens to have some effect on foreign relations, as if Congress had not weighed that possible effect in enacting laws permitting state intervention in the immigration field.” He then brought the matter back around to the crux of the entire issue. “Any negative effect on foreign relations caused by the free flow of immigration status information between Arizona and federal officials is due not to Arizona’s law but to the laws of Congress.”
Those would be the same laws that have yet to be discussed by Congress in an intellectually rigorous and respectful manner, even though legal and illegal immigrants, their advocates and enemies, and the communities they all call home are in near-universal agreement that those very laws must be reformed in the name of economic and homeland security.
Observers of Arizona’s audacious law had hoped its judicial spectacle would at least prod the federal government into some action. But based on this decision, it seems that at least for the foreseeable future Washington’s message to Arizona and other states who want to take immigration matters into their own hands is: You’re not allowed to deal with illegal immigration yourselves, only we can. And we will. Sometime. Maybe. Stand by.
Esther J. Cepeda is a nationally syndicated columnist. Email her at firstname.lastname@example.org.