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9th Circuit Slaps Down AZ “Papers Please” Law!

Papers Please [Explored Apr 28, 2010 #43]

Papers Please Explored Apr 28, 2010 #43 by DrCuervo, on Flickr

It has been a real whirlwind of a year. Anyone remember the Arizona “Papers Please” law? I know you all do, but given the BP disaster, the midterm elections, the shooting of Gabrielle Giffords and the killing of others that day, the Union Busting bills in the upper Midwest and the Arab Spring, it is easy to let something like that slip from our minds.

While the wheels of justice grind slow, they do grind exceedingly fine. That pernicious and probably unconstitutional law was blocked by a temporary injunction last July. The injunction prevented the implementation of the law, but of course, Gov. Jan “No Transplants for You” Brewer appealed that injunction.

Yesterday the 9th Circuit Court of Appeals slapped that appeal down and slapped it hard. In a 2-1 decision the appellate court found that the injunction should stand as there is good cause to think that the United State Government will win its case.

They based this decision on primarily on the Supremacy Clause which gives all Federal law supremacy over State law. Since immigration matters are something granted to the Federal Government by the Constitution specifically, Arizona’s attempt at separate and stronger enforcement of immigration status would be a usurpation of the national governments prerogatives.

This has been the argument against this frankly racist bill from the start. As much as Gov. Brewer and her allies in the State Senate would like to think they can make Arizona a hostile place for informal immigrants, the reality is they don’t have the authority to regulate immigration, except where Washington grants them the authority.

What is more than a little fun about this decision is the way that the two Judges who wrote the opinion took the State of Arizona’s argument apart. If you think back to the fight about this last year, one of the things that came up was the group called the Federation for American Immigration Reform, or F.A.I.R.

Rachel Maddow did a great job of exposing F.A.I.R’s roots in a lot of really, well, frankly racist stuff. She had its president on to talk about the fact that the founder of F.I.A.R., John Tanton wrote things like ;

“I’ve come to the point of view that for European-American society and culture to persist requires a European-American majority and a clear one at that.”


In 1997, John Tanton told the Detroit Free Press that America will soon be overrun by illegal immigrants “defecating and creating garbage and looking for jobs.”

Now knowing that they were swimming into potentially hot water, the folks at F.A.I.R. who helped draft this law tried to slip some language into the bill that would prevent it from looking like it was taking authority from the Federal Government and that it would create draconian requirements for the police.

Judges Paez and Noonan found:

On its face, the text does not support Arizona’s reading of Section 2(B). The second sentence is unambiguous: “Any person who is arrested shall have the person’s immigration status determined before the person is released.” Ariz. Rev. Stat.
Ann. § 11-1051(B) (2010) (emphasis added). The all encompassing “any person,” the mandatory “shall,” and the definite “determined,” make this provision incompatible with
the first sentence’s qualified “reasonable attempt . . . when practicable,” and qualified “reasonable suspicion.”

In addition, Arizona’s reading creates irreconcilable confusion as to the meaning of the third and fifth sentences. The third sentence, which follows the requirement of determining status prior to an arrestee being released, provides that “[t]he person’s immigration status shall be verified with the federal government.” The fifth sentence enumerates several forms of identification that will provide a presumption that a person is lawfully documented. These two sentences must apply to different—and unrelated—status-checking requirements since one mandates contact with the federal government and a definite verification of status, while the other permits a mere unverified presumption of status, assuming the presumption is not rebutted by other facts. Arizona’s reading would give law enforcement officers conflicting direction. That is, under Arizona’s reading, if an officer arrests a person and reasonably suspects that the arrestee is undocumented, but the arrestee provides a valid Arizona driver’s license, is the officer no longer bound by the third sentence’s requirement that he or she “shall” verify the arrestee’s status with the federal government?

I know that is a little hard to follow but basically the Judges are saying that the way the law is written there is a requirement that an officer contact the federal government for confirmation of immigration status, but they can also just take a valid id, issued by Arizona.

The whole opinion can be read here if you are a legal nerd like I am. But basically the two judges take the bill apart section by section showing that in past cases the Supreme Court has been very clear that the States can’t preempt the Federal Government and the test is has Congress made itself sufficiently clear as to its intent on a matter that a State can not act. They find time and time again that the State of Arizona’s arguments are not supported by the case law and therefore are disregarded.

There is one other bit of fun the opinion. Apparently there was more than a bit of nasty back and forth between the judges on the panel. The opinion is full of footnotes that directly dispute the dissent of the third judge. That is not really unusual but this little slap is:

We have carefully considered the dissent and we respond to its arguments as appropriate. We do not, however, respond where the dissent has resorted to fairy tale quotes and other superfluous and distracting rhetoric.
These devices make light of the seriousness of the issues before this court and distract from the legitimate judicial disagreements that separate the majority and dissent.

(emphasis added)

It is pretty rare to see judges taking each other to task for the way that they are making their decisions inside of an judicial opinion. You are more likely to see it in decisions that overturn a lower court opinion. Finding it and some of the others in this opinion is unusual and shows just how contentious this issue can be even in a Court of Appeals like the 9th Circuit which has a reputation for being fairly liberal.

This case is far from over; it is sure to be appealed to the Supreme Court. Since the Roberts Court is so oddly conservative (I’d go as far as to say reactionary) it is hard to know what they will do with this. It should be open and shut given the Supremacy Clause and the established test of Congressional intent, but you just never know with this gang.

Hopefully they will either decide not to hear the case or hear it quickly, since there are many other states that are moving forward with their own “Papers Please” laws. It would be best to nip this unconstitutional insanity in the bud.

The floor is yours.

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Bill Egnor

Bill Egnor

I am a life long Democrat from a political family. Work wise I am a Six Sigma Black Belt (process improvement project manager) and Freelance reporter for