The Ninth Circuit Court of Appeal heard oral argument today in USA v. Arizona, which was broadcast live on C-SPAN.

The three judge panel consisted of Judge Richard A. Paez, Judge Carlos T. Bea and Judge John T. Noonan, Jr. Representing the State of Arizona and Governor Jan Brewer was John J. Bouma. Representing the U.S. was U.S. Deputy Solicitor General Edwin Kneedler. Arizona Governor Jan Brewer was also present. There were protests and supporters outside the courthouse in San Francisco as well as in other jurisdictions. Numerous amici, or friends of the court, briefs were filed on both sides of the case by cities, counties, and states (including the City of Seattle, which signed on to the County of Santa Clara brief), federal legislators, and community, bar and foundation groups of all types. The briefs from each are posted on the Ninth Circuit Court of Appeals website.

USA v. Arizona involves only four of the provisions in the original Arizona statute, SB 1070. Arizona claims each provision is consistent with the objectives of Congress and federal legislation to enforce immigration laws. According to Arizona, the only issue where federal statutes preempt the Arizona law is the authority of the federal government to determine who stays or must leave the U.S. Arizona claims that violations of two of its statutory provisions are also violations of federal law. Judge Bea asked Mr. Bouma if Arizona was trying to suggest that where the federal government did not or would not enforce its laws, whether Arizona could enforce immigration laws for the federal government. As an example, Judge Bea asked whether if he didn’t pay his income taxes could California come along and sue him for failure to pay income tax? Mr. Bouma responded that California would not be interested in suing for income taxes, but that Arizona is concerned about the disproportionate impact on the state by the federal government’s failure to curb illegal immigration or Congressional failure to enact immigration reform.

One of the questions on appeal is whether Arizona law enforcement officers can legally be mandated to question people about their immigration status based on a “reasonable belief” that a person is in the U.S. illegally. Part of the provision states a person “shall not be released” until the person’s status is determined. The judges asked how this would play out in the field. Mr. Bouma responded that police are trained in constitutional protections of search and seizure, including reasonable suspicion, probable cause and Terry stops, and that if someone produces a drivers license, that is a presumption of legal status. But Judge Bea noted the presumption can be rebutted.

The federal government contends that the Arizona scheme is unconstitutional and inappropriately interferes with federal immigration enforcement and foreign policy. The Arizona law, if replicated in other states, would create a patchwork of confusing and inconsistent immigration enforcement laws across the country that conflict with the national scheme in the federal Immigration and Nationality Act, as amended.

Another provision in the Arizona statute makes it a crime to work without authorization. Mr. Bouma argued that while Congress expressed intent for the federal government to preempt the area of employer liability in part, it did not do so concerning employees, who can be convicted of making false statements on forms or for using false documents. Judge Bea, however, pointed out that in a prior case, it was held the legislative intent of Congress was not to penalize workers while their immigration cases are being decided, and that this court had to abide by that decision.

The judges were concerned that the Arizona law did not seem to differ from existing responsibilities of local law enforcement agencies that have 287(g) cooperation agreements with the federal government. Another provision of the law allows private citizens to sue law enforcement officers for not adequately enforcing the immigration laws. Mr. Kneedler argued this provision coupled with the mandatory nature of the obligations on Arizona law enforcement when they stop people based on just a reasonable suspicion and then check immigration status surpassed any cooperation activities involved in 287(g) agreements.

On the other hand, the Court questioned that part of Arizona’s law that criminalizes the failure to carry immigration papers showing lawful residency in the United States. The failure to carry specific documents under federal law, while a violation, would be a misdemeanor under the Arizona law. Mr. Kneedler argued it only applied to people unlawfully present, thereby criminalizing unlawful presence in the State of Arizona, which is preempted by federal law. The Arizona law, he said, was a direct regulation of immigration. The panel appeared to have already made up their mind on this issue.