Last summer, the eye of the nation was focused on Arizona, as the Obama administration and the American Civil Liberties Union (ACLU) filed dual lawsuits against the state and its sheriffs in an effort to prevent them from using law enforcement tools, codified in Arizona Senate Bill (SB) 1070, a law that fights illegal immigration and the crime that naturally results from it. Now, an unfavorable ruling by a panel of the Ninth Circuit Court of Appeals on the one hand, and the victorious passage of a bill in Georgia modeled on SB 1070 on the other, has again turned the heads of Americans to the issue.
So what has happened in plain terms, and what’s at stake?
Last July, even before the law took effect, federal Judge Susan Bolton blocked much of the key law enforcement provisions of SB 1070, but her arguments were based on dubious and speculative claims. Unfortunately, this month a three-person panel of the Ninth Circuit let the people of Arizona and this nation down by keeping Judge Bolton’s ill-advised injunction in place, pending a full trial on the law’s constitutionality.
Now, the state of Arizona must decide in the coming days how to proceed with its effort to defend SB 1070 and its border security provisions, and Americans must decide whether they will support border, and therefore national, security.
At this point, the state of Arizona could either go back to the district court for the full trial, or they could ask for the full Ninth Circuit Court of Appeals to review the ruling of the panel—neither options bodes well for a safe border.
The problem with going back to district court is that it is clear the judge seems to have made up her mind that the law is unconstitutional. Her initial ruling paid more attention to what foreign governments thought than what the people of Arizona thought, so why would she change her mind now?
A full Ninth Circuit review of her decision is also problematic, mainly because the court is the most overturned in the United States. Also, there’s little doubt a full review would result in the same poor decision by the three-judge panel. The judges’ ruling upholding the injunction against SB 1070 was clearly results-oriented, with the majority straining to contort the law to fit their agenda.
It has become clear to those such as Arizona’s sheriffs that this issue is too important to let languish in lower courts that have already sided with opponents of border security and against Arizona.
As most of us remember, Arizona stepped in to fill the void left by poor federal border security efforts by passing SB 1070 to give local law enforcement the necessary tools to fight illegal activity at the border. Other states have now followed suit. Georgia just passed important new legislation combating illegal immigration last week, and similar legislation is pending in various other states.
Opponents of state laws targeting illegal immigration, though, always tell us that we need a “federal” solution, not “piecemeal” laws. The Ninth Circuit itself acknowledges a split in the law on the question of whether local law enforcement can assist in enforcing civil aspects of federal immigration law, and courts in other states could come to other conclusions.
If this is true, then clearly we need our nation’s top court to weigh in and lay the ground rules for what states can and cannot do, and the governor should appeal to them directly. The Supreme Court must take up this issue that is critical to law enforcement efforts from Arizona to Georgia and across the country. Then all the states will have clear guidance on exactly what border-security efforts they can undertake in the face of federal government’s neglect.
My county, Cochise, borders Mexico, but is just one out of 3,143 counties in this nation. The time has long passed when border security is just a problem for communities near the border. Now it is a national problem, and Americans must decide whether they will join the efforts of Arizona’s sheriffs to fight the unjust lawsuits, so they can enforce the border and keep us safe.
As Arizona’s governor and attorney general decide what to do next in the appeals process, we urge them to think about which court is likely to provide the relief our state desperately needs. But we also urge them to think about the need for nationwide legal guidelines in this area of the law where state and federal power intersect. The feds won’t act, but maybe the Supreme Court will.
It’s our best shot.