Arizona's tough and controversial new immigration law will get its day before a San Francisco appeals court Monday, with the central issue being just what role state and local authorities can play in confronting those who cross the border illegally.
A three-judge panel of the 9th U.S. Circuit Court of Appeals will consider Gov. Jan Brewer's appeal of a ruling that put on hold parts of the law. Among the blocked provisions is the requirement that police _ in enforcing other laws _ must question the immigration status of those they suspect are in the country illegally.
When the law passed and was signed by Brewer on April 23, it touched off a national furor with supporters calling for similar legislation for their own states and detractors calling for an economic boycott of Arizona. Senate Bill 1070, as it is known, also blew up into a huge political issue during this year's mid-term elections.
It breathed new life into the Republican Brewer's campaign against Democrat Terry Goddard and rippled through many other state and national races. "Everybody had to respond in some way," said Fred Solop, chairman of Northern Arizona University's politics and international affairs department. "The fortunes of candidates changed substantially."
In terms of controversy, the law is being compared to California's Proposition 187, which barred the state from providing public services such as education and health care to illegal immigrants. Most of the law was declared unconstitutional, and it never made it through the appeals process.
"In the history books, 20 years from now, people will be talking about two state initiatives," said Kevin R. Johnson, an immigration expert and the law school dean at University of California at Davis, in comparing the two measures.
The Arizona law was passed by the Legislature amid years of complaints that the federal government hasn't done enough to lessen the state's role as the nation's busiest illegal entry point. Its passage ignited protests with thousands taking to the streets of Phoenix over whether the law would lead to racial profiling and prompted lawsuits by the U.S. Justice Department, civil rights groups and other opponents seeking to throw out the law.
Less than a day before the law was to take effect, U.S. District Judge Susan Bolton blocked key provisions, including a requirement that immigrants get or carry immigration registration papers. But she let other portions take effect, including a ban on obstructing traffic while seeking or offering day-labor services on public streets.
Brewer appealed the decision, arguing the state's intent was to assist federal authorities as Congress has encouraged. Her lawyers also contend Bolton erred by accepting speculation by the federal government that the law might burden legal immigrants and concluding that the federal government will likely prevail.
The Department of Justice argues the ruling should be upheld because the law interferes with the federal government's exclusive power to regulate immigration, disrupts the United States' relations with Mexico and wrongly burdens legal immigrants.
The fate of the law hinges on what's known in legal circles as "pre-emption," whether federal law trumps state law.
Stephen Yale-Loehr, who teaches immigration law at Cornell University and wrote a 20-volume treatise on U.S. immigration law, explained pre-emption as the division of powers where the federal government has the authority to declare war and send ambassadors to foreign countries and the states can regulate traffic and investigate crimes.
"Where does immigration fall in that spectrum?" Yale-Loehr asked. "The Arizona statute puts that issue front and center."
In her ruling, Bolton said she believed the Justice Department would likely succeed on some of its claims that federal law trumped state law.
The Arizona immigration enforcement law isn't the only one that has challenged federal primacy in immigration.
The 3rd U.S. Circuit Court of Appeals in Philadelphia ruled in September that a local immigration law in Hazleton, Pa., had usurped the federal government's exclusive power to regulate immigration. The city had sought to fine landlords who rent to illegal immigrants and deny business permits to companies that give them jobs.
The U.S. Supreme Court also is set to hear arguments on Dec. 8 in an appeal by groups that are trying to overturn a 2007 Arizona law that prohibits employers from knowingly hiring illegal immigrants.
Peter Spiro, who teaches immigration law at Temple University's law school, said either law from Arizona could be a platform for the Supreme Court to confront the question of whether states and communities can participate in immigration enforcement, a subject that the nation's highest court hasn't taken up since 1976.
Spiro predicted that the 9th Circuit Court of Appeals will likely uphold the lower court's ruling on Arizona's SB1070.
"If I were betting, I think the (Supreme Court) will strike down SB0170 at the same time that it allows some room for discretion at the state level," Spiro said.