ARIZONA ASKS U.S. SUPREME COURT: IS FEDERALISM STILL ALIVE?
June 1, 2011
In early May, Arizona Governor Jan Brewer announced she will provide the Supreme Court of the United States with another opportunity to demonstrate that the U.S. Court of Appeals for the Ninth Circuit is the federal appeals court whose opinions it most frequently reviews, reverses, and remands. The issue presented in her petition is whether Arizona’s attempt to address the impact of illegal immigrants on its citizens is unconstitutional.
Governor Brewer’s announcement follows the April 11 ruling by a three judge panel of the Ninth Circuit, voting 2-1, that S.B. 1070—Arizona’s legislation undertaking to address the safety, economic, and social issues caused by the presence of illegal immigrants in the Grand Canyon State—is contrary to the Supremacy Clause because it conflicts with federal law. The Ninth Circuit thereby upheld the July 28, 2010 ruling of an Arizona federal district court barring Arizona from implementing the law pending a final court ruling on the merits.
Almost immediately upon its enactment in April 2010, S.B. 1070 was challenged as unconstitutional by a host of “open-border groups,” including the ACLU, the Mexican American Legal Defense and Educational Fund (MALDEF), and the NAACP. The “other shoe,” however, dropped when Attorney General Eric Holder, proclaiming that Arizona’s law could violate the civil rights of its citizens, sued the State. Ironically, his lawsuit contained no such allegation.
Despite the legal challenges, or perhaps because of them, public support for the right of Arizona to respond to the crime, chaos, and cost of unrestrained illegal immigration and the refusal of the federal government to protect the Nation’s southern border, remains high. A Rasmussen Reports national telephone survey revealed that 61 percent of respondents favored the Arizona law for their states and 56 percent opposed the federal lawsuit.
The Obama Administration did not just have its Attorney General level inflammatory charges and file a lawsuit; it launched an unprecedented attack on a sovereign State. Obama himself lashed out with an imaginary tale of how any Hispanic man who takes his kid “out to get ice cream, [is] gonna be harassed.” Later, Assistant Secretary of State for the Bureau of Democracy, Human Rights, and Labor, Michael H. Posner, announced that, during human rights talks with China, he discussed the Arizona law “early and often,” “as a troubling trend in our society and an indication that we have to deal with issues of discrimination . . . .”
Not to be outdone, weeks later, Secretary of State Hillary Clinton included a mea culpa on the Arizona law in a report to the “U.N. High Commissioner for Human Rights,” an inclusion that drew a stinging rebuke from Governor Brewer. The United States’ first ever report to the U.N. body required that American diplomats appear, in what one expert called a “barbecuing,” before a panel of U.N. bureaucrats from France, Japan, and Cameroon to defend the Nation’s civil rights record and to hear testimony from non-governmental organizations (NGOs).
In November 2010, before the Ninth Circuit, federal lawyers stood by their winning argument at the Arizona federal district court that, in determining if the Arizona law violates the Supremacy Clause—which requires preemption of state laws that conflict with federal law, the question is not whether S.B. 1070 conflicts with federal law, but whether it is consistent with White House policy on “foreign relations  and humanitarian concerns. . . .” In April 2011, when the Ninth Circuit panel issued its ruling, one judge dissented.
Circuit Judge Carlos T. Bea charged that the majority, in ruling for the Obama Administration, ignored the mandate of Congress, deferred impermissibly to federal agencies and foreign countries, and, by adopting a view rejected even by Obama’s lawyers, stripped Arizona of its ability to protect its citizens. If the Supreme Court grants Governor Brewer’s petition, the real issue will be, not whether S.B. 1070 is constitutional, but whether the Constitution continues to provide for dual sovereignty.
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