SAN FRANCISCO - Questions raised by federal appellate judges Monday indicated they could let Arizona start enforcing one of the most controversial sections of SB 1070 - one that allows police to determine if someone they stop is here illegally.
Members of the three-judge panel of the 9th U.S. Circuit Court of Appeals pointed out that the Obama administration is making a "facial" challenge to Arizona's new immigration law, which requires the federal government to prove it is impossible to enforce the disputed provisions of the statute in any constitutional way.
But Judge Carlos Bea noted one disputed provision that says when police have stopped people, they are required, when practicable, to try to determine their immigration status with federal agencies if there is "reasonable suspicion" they are in this country illegally. Bea questioned whether that, by itself, is unconstitutional.
Bea told Edwin Kneedler, the deputy federal solicitor general, he does not see how that is pre-empted by federal law.
Kneedler conceded there is nothing wrong with police officers' making the checks on their own. "Our position is not that they're not authorized to" check with Immigration and Customs Enforcement, he said. "Our objection is that the state statute mandates it."
Bea was less certain.
"It's up to the state how they want to use their people," the judge responded.
Judge John Noonan added that if Congress doesn't want states requiring their officers to make such mandatory checks, there is a simple remedy: It can direct ICE to stop responding to the inquiries.
The questions by the judges indicate they are giving serious consideration to arguments by John Bouma, attorney for Gov. Jan Brewer, that U.S. District Judge Susan Bolton was wrong in July when she blocked the state from enforcing this provision of SB 1070.
US court could OK key part of SB 1070
Members of the three-judge panel of the 9th U.S. Circuit Court of Appeals pointed out that the Obama administration is making a "facial" challenge to Arizona's new immigration law, which requires the federal government to prove it is impossible to enforce the disputed provisions of the statute in any constitutional way.
But Judge Carlos Bea noted one disputed provision that says when police have stopped people, they are required, when practicable, to try to determine their immigration status with federal agencies if there is "reasonable suspicion" they are in this country illegally. Bea questioned whether that, by itself, is unconstitutional.
Bea told Edwin Kneedler, the deputy federal solicitor general, he does not see how that is pre-empted by federal law.
Kneedler conceded there is nothing wrong with police officers' making the checks on their own. "Our position is not that they're not authorized to" check with Immigration and Customs Enforcement, he said. "Our objection is that the state statute mandates it."
Bea was less certain.
"It's up to the state how they want to use their people," the judge responded.
Judge John Noonan added that if Congress doesn't want states requiring their officers to make such mandatory checks, there is a simple remedy: It can direct ICE to stop responding to the inquiries.
The questions by the judges indicate they are giving serious consideration to arguments by John Bouma, attorney for Gov. Jan Brewer, that U.S. District Judge Susan Bolton was wrong in July when she blocked the state from enforcing this provision of SB 1070.
US court could OK key part of SB 1070
