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This post first appeared on Appellate Daily.
Today (Nov. 1), the Ninth Circuit heard Arizona's appeal related to its controversial immigration law, SB1070. C-SPAN video here. Judges Richard Paez, Carlos Bea, and John Noonan (senior status) made up the panel. John Bouma, Chairman of Snell & Wilmer, argued for Arizona and Governor Jan Brewer, who was present. Edwin Kneedler, Deputy Solicitor General, argued for the United States.
A few observations:1-Not surprisingly, each side led with its strongest point-essentially equity versus preemption. Arizona argued that it is a border state addressing serious problems stemming from illegal immigration, which the federal government is not handling. The United States argued that the Constitution lists immigration as an area of federal power (thus preempting state power).2-Judge Bea was perhaps the hardest to read of the three judges, carefully, and sometimes vigorously, questioning both Bouma and Kneedler. As to SB1070 penalizing employees who work unlawfully, Judge Bea told Bouma outright: "[Y]ou are arguing something which is foreclosed to us," referring to an earlier, contrary Ninth Circuit holding (Congress did not intend to penalize employees in the immigration/employment context). "Let us suppose I stipulate to the fact that [the earlier decision] was absolutely wrong," Bea said. "I agree with you, let's say. I don't, but I say I agree with you, right? How does a three-judge panel of the Ninth Circuit overrule another three-judge panel of the Ninth Circuit . . . ?" Bouma answered, in rebuttal, that the earlier Ninth Circuit case was about DHS powers, not state powers.On the other side, Bea tested the United States' argument that SB1070 would hurt foreign relations, mentioning similar requirements in other states: "[Have] there been any adverse foreign relations since" 2007 when New Jersey adopted its rule? "Secondly, how about the same rule in Rhode Island? Has that led to our foreign relations being deteriorated as a result of checking immigration status?" Several times, Kneedler started and stopped his answer (that the State Department had identified concerns applicable to all such laws), to allow Bea to inquire, in succession, whether the concerns were: "As to Rhode Island? . . . As to New Jersey? . . . Or only as to Arizona?" Judge Paez responded to his fellow judge with a question, in effect inviting Kneedler to distinguish the Arizona law from the others. Paez was also an active questioner of both sides, but did appear to be more skeptical of Arizona's position. There was a humorous exchange between him and Bouma, who said that "shall" in an SB1070 provision meant "[w]e encourage them to do it." "That's a generous reading of shall," Paez said.3-Judge Noonan, who said very little during Arizona's argument, expressed deep frustration with the United States: "[Mr. Kneedler,] I've read your brief. [I've] read the district court [decision]. I've heard your interchange with my two colleagues and I don't understand your argument. And, you know, we are dependent as a court on counsel being responsive, focusing, trying to help us, not go down, just fall like soldiers in defense of some position that you've been told." Though predicting outcomes is always risky, Noonan appears the least likely to side with the United States.
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