Russell Pearce Denied by 9th Circuit on 1070; Judge Susan Bolton's Injunction Remains

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Pearce and his nativist allies were served a defeat today by the Ninth Circuit

State Senate President Russell Pearce, Governor Jan Brewer, and the forces of nativism here in Arizona and nationwide have suffered a crushing blow. The Ninth Circuit Court of Appeals has today upheld District Court Judge Susan R. Bolton's injunction of the most egregious parts of Senate Bill 1070.

You'll recall that on July 28, one day before the statute was to go into effect, Bolton enjoined four sections of the law dealing with cops asking for folks' "papers," making it illegal for legal aliens not to carry their "papers" with them, forbidding day-laborers from seeking work, and allowing police to conduct warrantless arrests if they believe a suspect has committed a crime that makes them removable from the country.

Bolton's ruling was in response to the lawsuit by the U.S. Department of Justice arguing that 1070 was unconstitutional and preempted by federal law. Governor Brewer's attorneys from the pricey firm of Snell and Wilmer appealed the injunction. 

Today, the majority of a three judge panel of the Ninth Circuit agreed with the federal government, keeping the injunction in place, and remanding the case back to Judge Bolton's court, where the lawsuit will continue.

Writing for the majority, Judge Richard Paez found that federal law did preempt Arizona's statute, and that there were grave foreign policy implications if the enjoined sections went into effect.

"The threat of 50 states layering their own immigration enforcement rules on top of the INA also weighs in favor of preemption," noted Paez at one point.

Significantly, Paez also found that Arizona peace officers do not have the "inherent authority" to enforce federal immigration law, as others have argued.

Paez writes:

"Arizona suggests, however, that it has the inherent authority to enforce federal civil removability without federal authorization, and therefore that the United States will not ultimately prevail on the merits. We do not agree. Contrary to the State's view, we simply are not persuaded that Arizona has the authority to unilaterally transform state and local law enforcement officers into a state-controlled DHS force to carry out its declared policy of attrition."

(You can read the entire opinion, here.)

In so concluding, Paez acknowledged that this view conflicts with the position of the Tenth Circuit Court of Appeals, which has ruled that local cops do have such authority. This may be an issue that will ultimately have to be decided by the U.S. Supreme Court.

"In sum, we are not persuaded that Arizona has the inherent authority to enforce the civil provisions of federal immigration law," writes Paez. "Therefore, Arizona must be federally authorized to conduct such enforcement."

Ultimately, Paez found that Judge Bolton had properly enjoined the four sections of the law at issue.

"Accordingly, we find that as to the S.B. 1070 Sections in which the United States is likely to prevail, the district court did not abuse its discretion in finding that the United States demonstrated that it faced irreparable harm and that granting the preliminary injunction properly balanced the equities and was in the public interest."

In his concurring opinion, Judge John Noonan explained at length how immigration is inextricably part of the foreign policy of the United States, and that Arizona was deliberately attempting to devise its own foreign policy by creating its own immigration laws.

"The foreign policy of the United States preempts the field entered by Arizona," writes Noonan. "Foreign policy is not and cannot be determined by the several states. Foreign policy is determined by the nation as the nation interacts with other nations. Whatever in any substantial degree attempts to express a policy by a single state or by several states toward other nations enters an exclusively federal field."

Noonan also observes that the stated purpose of SB 1070, as declared in the first section of the law, is "to make attrition through enforcement the public policy of all state and local government agencies in Arizona."

And this stated purpose of driving all illegal immigrants from the land is in effect a separate foreign policy as odds with that of the U.S. Government.

"If we read section 1 of the statute," Noonan writes, "the statute states the purpose of providing a solution to illegal immigration into the United States. So read, the statute is a singular entry into the foreign policy of the United States by a single state. The district court properly enjoined implementation of the four sections of the statute."

Judge Carlos Bea dissented in part, agreeing with his fellow judges on two sections of the law, and disagreeing with them on two others.

Bea does not believe that the section requiring police officers to determine the immigration status of those subject to a "lawful stop" (the "papers, please" portion of the law) is unconstitutional on its face. 

He also disagreed with the majority concerning the "inherent authority" of local police officers, finding that local cops do have the authority to inquire after immigration status and that the federal government has encouraged local police agencies to do so. 

"The majority's attempt to straight-jacket local and state inquiries as to immigration status to what `terms' the `federal government' dictates reveals the fundamental divide in our views. The majority finds the intent of `the government' decisive; look to Congress's intent--as required by Supreme Court preemption law."

Still, Bea agreed with the majority regarding two sections of 1070, the one regarding day-laborers and the one requiring all legal aliens to have their papers on them at all times:

"I concur with the majority that Section 3, which penalizes an alien's failure to carry documentation as required by federal immigration statutes, impermissibly infringes on the federal government's uniform, integrated, and comprehensive system of registration which leaves no room for its enforcement by the state. I also concur with the majority that Section (C), which penalizes an illegal alien for working or seeking work, conflicts with Congress's intent to focus on employer penalties..."

As to the foreign policy implications of 1070, which take up a good part of the majority's decision, Bea dismisses them outright:

"...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 dissent aside, the Ninth Circuit's decision is a historic rejection of Pearce's attempt to regulate immigration within the boundaries of Arizona, and it serves as a warning to other states eager to follow Sand Land's lead. 

The fight continues as the lawsuit drags out in federal court, yet the Ninth Circuit essentially found that the federal government is likely to prevail, and so the injunction stands. 

Governor Brewer's lawyers may appeal to the U.S. Supreme Court. But at what point will it become apparent to the general public that this adventure into the legal morass, one engineered by the hatemongers at the Federation for American Immigration Reform, has been deleterious to the state's economy, its image, and to the level of discourse over immigration in this state and in this country? I wonder.

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37 comments
Kitsugab
Kitsugab

This to inform you of a person living and working in the United States illegally. The names that this person assumes are as follows: Gabriela Sanchez (her niece), Karla P. Durazo (her aunt), Patty Durazo (her sister),Julieta Sanchez (her aunt), Patty Sanchez (her sister/her niece) Rocio Sanchez (her sister), Mayra Viramontes (her cousin), Karen Durazo (her cousin),Kenya Durazo (hercousin), Karina Sanchez (her cousin).All of the names assumed by her can be substantiated through her facebook account which is under the name Gabby Sanchez.Her Employer is: Dr. Larry Stark   3201 W. Peoria Ave # A-100   Phoenix, AZ 85029Her assumed Social Security # is her Aunt's Soc. Sec. # 611-32-7757 (Karla P. Durazo) who actually lives in California.She drives a pathfinder with AZ lic. # AHT4587 Her address is: 2220 W. Mission Ln. #1095 (which is in Larry Starks name /  Phoenix, AZ 85017    co-signed for)  SRP Acct # 919-863-000    (which is in Larry Starks name)Her Phone # 602-628-3116   (which is in Larry Starks name)Family Assistance Administration Case # 00564738 (Gabriela Sanchez)Dental work provided under the name Patty Sanchez. And full medical (BCBS)is paid for by Larry StarkHer sons name is Carlos Flores-Sanchez and he graduated from Cortez High School.She was raised by her Grandmother who was a whore in Mexico. This young woman makes it easier for other illegals to obtain medications includingnarcotics and evade citizenship tests through the Doctors office that she works in.Also supplying them with false identification and documentation. I am very concerned about the illegal activities (Document Fraud, Identity Theft, Conducting crimes in America) that she is involved in. Please address the above issues as soon as possible.

Concerned Citizen 

linbo4
linbo4

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Usgovfail
Usgovfail

fucking pathetic mexicans/hispanics/latinos. You cowards have no dignity. Why don't you fight in mexico for rights or for that better life? Becuase you are COWARDS. Too lazy to clean up your nation so you flee like little bitches to america where you suck the taxpayer tit while hiding in the shadows. All those mexis I saw this morning, they were loitering not even a mile from the courthouse. Cops driving up and down the street and don't even bother to do anythign about it. Fuck chandler and fuck the federal government.

Anon
Anon

It's people like you who are harming Arizona's communities and business. Do you think people want to come here and live around people like you?

Lee
Lee

Again, please do not procreate. Mini yous running around may require new legislation prohibiting the presence in this country of angry, swearing 2 year-olds who want to :*&%$ everything.

WhoKnows
WhoKnows

Most have families that lived in this area since long before your ancestors rode on leaky boats to land at Ellis island to escape what they were too weak to fix in Europe.

You should wear a t-shirt that says "HYPOCITE!" with an arrow pointing to your pointy little head!

Usgovfail
Usgovfail

Fuck susan bolton, I hope someone kills that traitorous bitch. I just drove down arizona ave south of frye street in chandler and on the west side of the road there were 11 cockroache illegal alien mexicans loitering. Most likely day laboers that will make cash and pay no taxes on it. This country sucks balls now. Fuck america and fuck the us federal government for not protecting our nation from these invaders. I hope china declares war on america and destroys this country. That or I hope osama bin laden attacks america again, hopefully next time he will target government. mexico = shit.

Mistalee
Mistalee

Every Mexican at the Weiss Guys car wash fucked your mother.

Bobby
Bobby

Oh, Judge Susan Bolton is just another sandbilly traitor. Soon as the other sandbillys wise up, she's outta there, as they say in baseball.

Lee
Lee

Are you real? If so, please do not procreate.

Gerry_C
Gerry_C

Somebody needs to get laid, twice!

Coz
Coz

the only thing that poster will ever get laid by is a goat

majii
majii

All of this could have been avoided had the officials who crafted SB 1070 and Jan Brewer who signed it into law had a much better understanding of the Constitution. There's this little thing known as the Supremacy Clause that states that federal laws supersede state laws, and that no state can enact a law that usurps the power(s) of federal laws. This isn't rocket science. It's high school civics. We should expect more of our public officials. They have wasted our tax money creating and passing this law and fighting it in court. This is money that could have been used to replace some of that cut from certain areas of the budget, especially the education budget.

Anon
Anon

Raising the standards for those in the highest governing positions, like requiring a college degree as a basic minimum would help. In the meantime, those without credentials or knowledge of the Constitution are controlling the state, their people and the billions of Federal $$'s necessary to keep Arizona afloat. The reality is a sad commentary.

Coz
Coz

Problem is the politicians you are talking about are not all that smart to begin with to understand much about anything.

>>All of this could have been avoided had the officials who crafted SB 1070 and Jan Brewer who signed it into law had a much better understanding of the Constitution

mikefrombisbee
mikefrombisbee

This never should have happened. No state government has the right to regulate immigration. The shit-head Pearce knows that. He is a very good pol. This right-wing, Nazi-hugging turd-bug never thought it would fly - he was just re-framing the issue. What we have to do is destroy the little putz's credence. Does the mainstream media know about his sleazy history? I think not. It's time to destroy his reputation with the "blow-dries.".

poor russell
poor russell

poor Russel , his baby 1070 gets shot Down , his son was just in jail , and he himself is being investigated in the Fiesta Bowl Scandal, couldn't happen to a nicer guy

Eastlostangeles
Eastlostangeles

This is my favorite quote, Paez's opinion, page nine:"We have carefully considered the dissent and we respond to its argumentsas appropriate. We do not, however, respond where the dissent hasresorted to fairy tale quotes and other superfluous and distracting rhetoric.These devices make light of the seriousness of the issues before this courtand distract from the legitimate judicial disagreements that separate themajority and dissent."

linbo4
linbo4

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Janmustgo
Janmustgo

What's amazing is that the judges went so far as to essentially foreclose Arizona's chances of succeeding in their still pending case with Judge Bolton. Check out page 36 of the opinion:

"We are not aware of any binding authority holding that states possess the inherent authority to enforce the civil provisions of federal immigration law—we now hold that states do not have such inherent authority."

david saint
david saint

i always found it funny that FAIR used the word "reform" in their title. The only reform they want is "whites only"! lol they might as well walk around with sheets on their heads...

Shocked
Shocked

they do walk around with sheets on their heads.

WhoKnows
WhoKnows

Seeing the bigoted anti-American moron wearing the American Flag makes me want to puke.

XSoldier
XSoldier

When will Senate President Russell Pearce and Governor Jan Brewer open their beady little eyes and see that this statute was and is a waste?

If the 9th Circuit is rejecting Pearce and Brewer, what are the odds that the U.S. Supreme Court will hear the case?

Now I see why those senators shot Pearce down on those immigration bills this session. I think they had a sense that 1070 would fail on appeal.

Now, if Judge Bolton would void the law while ordering Congress to do its job, we wouldn't be in this mess.

Gerry_C
Gerry_C

What I don't get is why we are wasting so much money appealing to the 9th and probably the SCOTUS. This is only an injunction that we are fighting about. The case has not even really started yet in Federal court.

Temoc
Temoc

The United States Constitution is the supreme law of the land. It clearly gives the federal government EXCLUSIVE authority over immigration. As such, SB 1070 is clearly UNCONSTITUTIONAL!

Illegal immigration is a civil (not criminal) violation of federal law. Yet, under SB1070, illegal immigration becomes a CRIME under Arizona STATE law. How this amounts to a 'mirror on federal law' is hard to fathom!

The most ridiculous part of this whole charade is watching the wingnuts foam at the mouth insisting Arizona has the authority to enact its OWNS immigration laws - but Utah does not!

SB 1070 violates the United State Constitution. That means it's ILLEGAL. Hence, I wonder;

What part of ILLEGAL is sooooooooo hard to understand???

Tommy Collins
Tommy Collins

Some of the brightest and best legal minds in the country have said parts of 1070 are unconstitutional, yet the senator and Mrs. Brewer wasted many thousands of dollars appealing to the Ninth Circuit.

Now, those two jackwagons are likely to waste more tens of thousands of dollars to appeal it to the U.S. Supreme Court, not even knowing if the court will even hear the appeal. Likely not. But the money isn't coming out of the personal pockets of the senator or Mrs. Brewer. Or the Fiesta Bowl, for that matter. So, they really don't care whose money they are wasting.

Someone, perhaps Mr. Pullen, in the Republican party really needs to explain this stuff to those two. I would do so, but I can't type slowly enough for them to keep up.

Rollem45
Rollem45

RuSSell PearSSe and Brewer and KKKaaaavenaww all seem to assume that the US Supreme Court will grant certiorari and the Supremes will review SB 1070 automatically because KKKris KKKobac told them so....yet to be seen.

Chad Snow
Chad Snow

F.A.I.R. is the Lisa Aubuchon of the white supremacist movement - never won a big case.

Now that they've been shot down by a panel of law professors, a federal judge, and the 9th Circuit Court of Appeals, will Pearce and Brewer please put this mess behind us?

GENO
GENO

"F.A.I.R. is the Lisa Aubuchon of the white supremaicst movement--never won a big case."

That's a good comparison. I don't ever recall them ever winning any major cases in the court of lAaw. I guess that KKKris KKKobach is the male version of Lisa Aubuchon.

As for that neo-Nazi asskisser Russell Pearce. Things are not looking to bright for him.

VIMIIS
VIMIIS

Not likely any time soon Chad. This court of appeals has a history of being overturned if I understand correctly. Pearce will not drop the ball and run home until he has tried everything he can think of. Really, all this would be a mute issue if the Federal Government would just handle immigration the way they are supposed to. Obama looking the other way isn't helping. Someone better take responsibility and make this a priority and that should be the Federal Government plain and simple. They need to kick Peare to the side and fix it.................

DG
DG

There is simply no logical manner that any legislation or actions thereof, short of putting up a "Berlin Wall" up on our north and south borders. You plug one hole another pops up. Which why illegal immigration is so bad in AZ now because of the actions of CA and TX. Border crossings and drug smuggling are already increasing on the canadian border and how praytell is the govt going to secure all waterway (ocean) access with submarines now being utilized to smuggle anything and everything across the borders. No president dem or repub has ever been able to do it otherwise why didn't bush? It will never be cost effective ever so other avenues need to be sought out otherwise taxpayers money is going to be wasted attempting to do so, like the failed fence, national guard help and even more space aged ideas have never panned out. And all along the way our money is wasted on frivilous lawsuits that will never pass constitutional muster. If you really believe we can secure all. Our borders you are not thinking rationally or logically. Time to pull your heads out and come up with workable solutions because illegal immigration will never stop. The instinct to survive overtakes any countries laws any day of the week and history appears to support this.

Tommy Collins
Tommy Collins

VIMIIS, I believe the Ninth Circuit does have a history of being overturned, but most of those cases deal with far left, extreme liberal issues. This issue is neither far left or extreme liberal, in my not so humble opinion; and is a matter of constitutional laws that have been tested many times over many years in many ways.

My uneducated opinion of the ruling by Judge Bolton leads me to believe her injunction on most, if not all, of the challenged parts of 1070 will stand. Perhaps someone with a law degree in constitutional law will argue this and straighten me out, but at this point I think the people will prevail and the State, senator, and Mrs. Brewer will be shown to be the losers they really are.

VIMIIS
VIMIIS

Tommy: Thank you for explaining to me the types of issues that have been overturned. Now I feel better. I still believe the Federal Government needs to do their job once and for all and kick Pearce and Brewer to the curb where they belong................

Tommy Collins
Tommy Collins

Not likely, Chad. A little thing like constitutional law is not going to get in their way.

Dave Francis
Dave Francis

FIGHTING THE LIBERAL PROGRESSIVE COURTS WITH THE GROWING TEA PARTY CAUCUS.

In 1986 the Simpson/ Mazzoli bill gave a mass amnesty to every illegal immigrant who settled in America. The need for Guest Workers is one of the most predominant issues allied with the invasion that has taken place in the last thirty years. The Guest Worker has never been obedient with the Dept of Labor regulations since it’s been inundated with fraud. Even after the volume amnesty signed into law by President Ronald Reagan, the opportunists in businesses used their influence to crush the immigration obligations assigned to them. In other words they kept on hiring foreign nationals that was in violation of the law;, the administrations have intentionally overlooked this major problem. The 1986 amnesty allowed the rough figure of 3.5 million, scatter to the four winds leaving the designated farms deserted and the workers joining the main stream work in the cities and communities.

Even the original process was nothing more than a travesty of the "Rule of Law." The numbers of the final immigration tally that was given amnesty was around 6 million, with illegal’s coming out of the woodwork brandishing bogus pre-dated utility bills and fraudulent documents accepted by the (INS) Immigration and Naturalization service; that has become (ICE) Immigration & Customs Service on September 11, 2001. All evidence that an foreigner was in the U.S. for a certain amount of time, or performed a certain number of days of field labor, was abridged to guarantee that all persons could qualify. INS offices were told to accept little more than scribbled copies of handwritten receipts and affidavits from so-called "people" (Not family members) who could attest that the applicant lived or worked for a certain amount of time somewhere in the US. Businesses and their lawyers have colluded with in killing any oversight of the majority of Guest Worker processes that have imported less capable, less skilled into America. Annually without public knowledge at least a million and a half semi-skilled workers (six stealth amnesties) come legally to America, which is a sell out to our own people.

Document mills sprung up countrywide, offering receipts and affidavits to help demonstrate your eligibility for amnesty and eligibility for a green card; this was one of the biggest contradictions to our laws, which should never have happened, nor happen again. Farms and agriculture by law are supposed to provide for the Guest Worker and the family, but instead when sick or injured the burden falls as usual on the taxpayer. For the children of Guest Workers born in the United States they become instant citizens and the American taxpayer only has to read the Pdf file "Illegal Aliens and American Medicine." http://tinyurl.com/o6r27

Even more than Medicare for seniors, Medicaid has become a giant financial anvil around taxpayers’ necks that new citizen children of illegal parents use. Somewhere between 200.000 and 250.000 children of illegal alien parents receive citizenship annually. This is outside the fiscal nightmare of mandatory education that is cramming our classrooms of these children having no conception of English. The neglect of American students is happening nationwide, because teachers are forced to fritter more attention to their learning of non-citizen foreigners. The consequences of that are thousands more teachers must be hired, with means more taxes extracted from us all. This procedure is habitual of dumping illegal alien workers in the emergency rooms, that has become a uncontrollable expenditure, adding to the near 15 Trillion deficit and yet another burden on US taxpayers. We can alway use exceptionally talented workers, but what we don't need is the push of other governments poor and desperate who end up in our welfare lines.

Certainly not something the Liberal press will release to the public at large. Technology today has far surpassed the copy machines and document mills of the late 60's. Any new immigration amnesty which includes Senator Harry Reid's "Dream Act”, Comprehensive Immigration Reform, would be hard to control without state of the art innovations. The 20 million plus who are already illegally here would place America's future in jeopardy, because of the Liberal Democrat agenda or Republicans ravenous need for cheap labor, crushing even more the legitimate lower income US job seeker. Hundreds of thousands of American less educated manual jobs have been displaced by illegal aliens. Not racial prejudice that Liberals cry out continuously, but a genuine need for jobs for Americans born here or legitimate permanent residents. For the two principle parties it’s about votes and profits.

This is where the TEA PARTY of the American people step up to the dais, and no more Club Republican elite or Liberal Progressives using "Political Correctness" tripe to divert the laws of this country. No matter what the majority Speaker John Boehner (R-OH) says or Sen. Reid, the TEA PARTIES influence attributed to the lowering of the debt ceiling by 38 billion dollars. Not enough for sure, but better than nothing at all. Now the TEA PARTY will demand that a new mandated E-Verify becomes a main enforcement tool, followed closely by policing law 287 (g) and Secure Communities. E-Verify would used in audits to detect illegal workers, already working and those about to be hired. With extreme pressure on businesses that try to avoid the law, with chronic penalties of fines, business assets and licensing evoked and prison;

The TEA PARTY is no longer a few loosely unorganized groups as tired, Sen. Harry Reid wheezes-out, but a giant mobilized machine of propagating power. Next to keep the Republican on its tracks is the budget of 2012, beginning with cutting government agencies, stopping the shadow Liberals overspending, not retreating from re-analyzing the unfair treaties of NAFTA and CAFTA for the American consumer and above all else, to enforce all requirement of National Security. Which means the--REAL--fence to protect America from people and drug smuggling? THIS IS THE PEOPLE'S WAR, THAT WE ALL MUST DEFEND AGAINST THE GREED, CORRUPTION IN WASHINGTON AND THE ROT THAT IS DESTROYING OUR COUNTRY FROM WITHIN. Illegal Immigration effects jobs of the lowest paid, taxes, our schools, health care and growing irreversible OVERPOPULATION.

Immigration news: Rep. Ed Royce (R-Calif.) has introduced a bill that would increase border security and strengthen interior enforcement. The Keeping the Pledge on Immigration Act of 2011 (H.R.1274) requires the US Government to deploy national guard troops to the border and includes the CLEAR Act that requires cooperation between the federal government and state and local law agencies in the enforcement of immigration laws. Learn more from NUMBERSUSA. Start calling your federal and local politician to be found in the blue pages of your phone directory and demand they co-sponsor H.R.1274. Don't let illegal aliens spend your taxes anymore?

Immediate Red flag news: The 9th circuit court in the Sanctuary city of San Francisco that is hated appeals court by patriotic Americans, as its overrun by activist judges (Liberal Progressives) has blocked major sections of the strict Arizona illegal immigration law.

ATTN: Rising gas prices are not the main cause of this issue. Speculators are having a great deal to do with insidious problem. We can aid in stopping these incorrigible hikes, by cutting back usage; if not a priority DO NOT DRIVE! My relative in Los Angeles says he cannot afford the $4.11 cents at the pump, so he is joining a group of men driving to work and sharing the ride. He has joined "Netflix" for watching movies, instead of the outrageous price at the box office. He earns good money as a graphic artist, but says with a family of three, he needs to cut down on his driving habits.

NO Copyright, ever! Distribute freely.

THE BLACK SPIT
THE BLACK SPIT

I heard there is a run on Peptobismol in the CVS close to the AZ Capitol. Pearce and Brewer are doing it down based on the 9th Court of Appeals ruling!!! They are so sick that their heads are going to explode. LOL

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