By Paul Davenport
Associated Press
PHOENIX (AP) — Arizona state officials would like the United States Supreme Court to weigh in sooner rather than later on a trial judge’s decision to put the most controversial parts of the state’s immigration enforcement law on hold.
Gov. Jan Brewer, Attorney General Tom Horne and Senate President Russell Pearce said recently the decision to skip a possible second appeal to an intermediate appellate court could save time in resolving the case.
“It seems like this is a big enough national issue that it will ultimately be determined by the United States Supreme Court,” Horne said.
The planned appeal to the high court comes after Brewer lost an initial appeal April 11. A three-judge panel of the 9th U.S. Circuit Court of Appeals refused to reverse a lower court’s order that prevented key parts of the law from being enforced.
While Brewer said she is confident Arizona will prevail, several legal experts said the Supreme Court might be reluctant to take up the case at this relatively early stage.
“This is a hot potato that it doesn’t have to grab hold of at this point,” said Peter Spiro, a Tempe University law professor who specializes in immigration law.
University of Arizona law professor Gabriel “Jack” Chin said the justices likely will refuse to grant Arizona’s request to review the trial judge’s injunction unless the federal government urges it to do so.
Absent that, “the normal resolution of a case like this is that they would wait,” Chin said.
Justice Department spokeswoman Tracy Schmaler declined to comment on the Arizona announcement.
The state must file the appeal by a July 11 deadline, and the Supreme Court has discretion on whether to consider it.
If the state opted to ask to have a larger panel of 9th Circuit judges hear the case, that would likely mean the case would not reach the Supreme Court in time to be decided during its 2011-12 term, and maybe not even the next one, Horne said.
Under the chosen course, there could be a Supreme Court ruling as soon as next winter or spring, he said.
In its April ruling, the three-judge 9th Circuit panel said federal officials are likely to prove the law is unconstitutional and succeed in their argument that Congress has given the federal government sole authority to enforce immigration laws.
Brewer’s lawyers argued the federal government hasn’t effectively enforced immigration law at the border and in Arizona’s interior, and that the state’s intent in passing the law was to assist federal authorities as Congress has encouraged.
They also argued U.S. District Judge Susan Bolton erred by accepting speculation by the federal government that the law might burden legal immigrants and by concluding the federal government would likely prevail.
The federal government has argued that the law intrudes on its exclusive authority to regulate immigration, disrupts relations between the U.S. and Mexico, hinders cooperation between state and federal officials, and burdens legal immigrants.
State Sen. Steve Gallardo, a critic of the law, said Brewer and Horne should abandon their support for the measure, which he said is dividing the state and hurting its economy.
But Gallardo added it’s good that the state is appealing directly to the U.S. Supreme Court because it accelerates the case. “We want to put a nail in this coffin,” the Phoenix Democrat said.
Less than a day before the law was to take effect in July, Bolton blocked key provisions from being enforced, including requirements that immigrants carry their registration documents and that police — in enforcing other laws — question the immigration status of those they suspect are in the country illegally.
But Bolton let other parts take effect, such as a ban on obstructing traffic while seeking or offering day-labor services on streets.
The law was passed in April 2010 amid years of complaints that the federal government hadn’t done enough to lessen the state’s role as the nation’s busiest illegal entry point.
Its passage inspired protests and led to lawsuits seeking to overturn the law and a debate about whether the law would lead to racial profiling.
The Arizona law isn’t the only one that has challenged federal primacy in immigration.
The U.S. Supreme Court is mulling arguments in an appeal by groups that are trying to overturn a 2007 Arizona law that prohibits employers from knowingly hiring illegal immigrants.
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