Brewer on Monday announced that she would appeal the U.S. Ninth Circuit Court of Appeals’ ruling directly to the nation’s highest court, rather than ask the Ninth Circuit for an en banc review before an 11-judge panel. The state must file its appeal with the Supreme Court by July 11.
In a rare press conference in Executive Tower, Brewer said she didn’t want to delay the case by going back to the Ninth Circuit.
“We need to get this issue up to the Supreme Court to get the injunction lifted as quickly as possible so that we can move forward in order to keep the safety and the welfare of the people of Arizona and of America safe,” Brewer said. “The American people have clearly sided with Arizona on the righteousness of Senate Bill 1070, and I believe the Supreme Court will as well.”
Flanked by Attorney General Tom Horne, Senate President Russell Pearce, the bill’s sponsor, and attorney John Bouma, the state’s lead counsel on the case, Brewer said she believed the Ninth Circuit erred in its 2-1 ruling in April that two key provisions of SB1070 were preempted by federal law. Horne criticized the court for its ruling that the case infringed on the federal government’s ability to carry out its foreign policy, which he said inappropriately considered the opinions of foreign governments that responded negatively or filed legal briefs in opposition to the law.Technically, the state is not asking the Supreme Court to rule on the constitutionality of SB1070. Arizona’s attorneys are asking the Supreme Court, just as it asked the Ninth Circuit, to lift U.S. District Court Judge Susan Bolton’s injunction that blocked some pieces of the law from going into effect while the case works its way through the court system.
One enjoined provision requires police officers to check the immigration status of any suspected illegal immigrant. The other essentially makes it a state crime to be in the country illegally.
But the Supreme Court’s ruling will likely settle the constitutionality of the case once and for all. If the Supreme Court rules against the state – or if it refused to hear the case – Horne said Arizona could still argue the merits of the case through the district and appellate courts. But he said it would be unlikely that the result would be any different.
Horne was confident the Supreme Court would hear the case because of its national implications – several other states are considering legislation similar to SB1070 – and was optimistic that the court would rule in Arizona’s favor.
“This is a big enough national issue that it will ultimately be determined by the United States Supreme Court, and seeking en banc review in the Ninth Circuit could involve very lengthy delays. The situation on the border is urgent. We need this decided as quickly as possible,” Horne said. “The Ninth Circuit decision has conclusions in it that are erroneous and we will argue to the United States Supreme Court that they are erroneous. And I think we’ll persuade them that it’s erroneous.”
Brewer said the state may alter the defense it used in the district and appellate courts, though she wouldn’t say how.
“The bottom line is those decisions have not been completely made,” she said.By congressional mandate, the U.S. Immigration and Customs Enforcement must respond to state and local law enforcement requests to check suspects’ immigration status. Horne argued that the provision of SB1070 that requires police officers to inquire about the immigration status of any suspected illegal immigrant they encounter – one of the provisions blocked by the district and appellate courts – is constitutional because it mirrors federal law.
“The issue before the Ninth Circuit was whether we were interfering with the priorities of the federal government. And our position is that Congress has set those priorities and that Congress requires that they respond to those inquiries,” Horne said.
Pearce angrily responded to the argument that the state’s interference with foreign policy creates a hardship for the federal government. The greater hardships, he said, are being felt in Arizona through crimes committed by illegal immigrants, such as the March 2010 murder of rancher Rob Krentz, or the cost of educating, incarcerating and providing medical care to illegal immigrants.
“Yeah, I do worry about the hardships. I worry about the hardships. I worry about the hardships on the citizens and the law abiding Americans that every day expect their government to do what’s right,” he said.
Pearce predicted that the court would rule 5-4 or 6-3 in Arizona’s favor.
Brewer said the fight won’t be cheap, but noted that the state’s defense is paid for through private donations to its Border Security and Illegal Immigration Defense Fund. The fund, which was started with unsolicited contributions, raised about $3.7 million. As of the beginning of May, the state had spent about $1.9 million.