Judge tells U.S. ‘you don’t have an argument’ on Arizona law

Liz Goodwin

An appeals court judge "grilled" Justice Department attorneys over the government's core argument against Arizona's anti-illegal immigration law Monday, the Washington Post reports.

"I've read your brief, I've read the District Court opinion, I've heard your interchange with my two colleagues, and I don't understand your argument," Judge John T. Noonan Jr. told a Justice Department attorney. "You keep saying the problem is that a state officer is told to do something. That's not a matter of pre-emption. ... I would think the proper thing to do is to concede that this is a point where you don't have an argument."

A lower judge blocked four parts of the Arizona law as unconstitutional in July, agreeing with the Justice Department that Arizona did not have the authority to "pre-empt," or usurp, federal law by legislating its own immigration policy.

A panel of three judges on the 9th Circuit Court of Appeals is reviewing the judge's injunction, and at least one of them seemed deeply skeptical of the federal government's claim that local law enforcement officers should not be allowed to verify the immigration status of someone they have stopped for another infraction. Federal law already provides a service for states to check the immigration status of people, so it's problematic for the federal government to argue that states are prohibited from doing just that.

University of Arizona law professor Gabriel Chin tells The Upshot that he expects the court will lift the injunction on that part of the law, with the understanding that law officers will not be allowed to detain those they suspect of being in the country illegally indefinitely, as was originally intended.

It's worth noting, though, that the judge who originally blocked the law, Judge Susan Bolton, also "sharply questioned" Justice Department authorities on their pre-emption argument before eventually siding with them. Trying to predict how judges will rule by looking at their oral-argument questions is always speculative, Arizona State University law professor Evelyn Cruz tells The Upshot, as judges are often just trying to provoke a response from lawyers.

Two other blocked portions of the law that make it a crime for an immigrant not to carry papers and for illegal immigrants to seek work will most likely remain enjoined, the Los Angeles Times reports.

John Bouma, a lawyer for the state, said that if the court allows officers to check immigration status yet the state "can't prosecute them, it doesn't make a lot of sense to hold them," according to the San Francisco Chronicle.

Officers could still alert immigration authorities that they had an illegal immigrant in custody. But Immigrations and Customs Enforcement has said it lacks the resources to take action against illegal immigrants who are not dangerous criminals.

Three Arizona sheriffs who are staunch supporters of the law were "encouraged" by the judge's comments Monday, reports the Arizona Republic.

(Photo of the three Arizona sheriffs watching Monday's hearing on TV: Ross D. Franklin/AP)