Judge Questions Justice Department’s Lawsuit Against Arizona Immigration Law

Jerry Markon, Washington Post, November 1, 2010

A federal appellate judge expressed deep skepticism Monday about a Justice Department lawsuit challenging Arizona’s new immigration law, leaving uncertain the Obama administration’s chances of stopping the law from taking effect.

Judge John T. Noonan Jr. grilled administration lawyers at a hearing before the U.S. Court of Appeals for the 9th Circuit. He took aim at the core of the Justice Department’s argument: that the Arizona statute is “preempted” by federal law and is especially troublesome because it requires mandatory immigration status checks in certain circumstances.

“I’ve read your brief, I’ve read the District Court opinion, I’ve heard your interchange with my two colleagues, and I don’t understand your argument,” Noonan told deputy solicitor general Edwin S. Kneedler. “We are dependent as a court on counsel being responsive. . . . You keep saying the problem is that a state officer is told to do something. That’s not a matter of preemption. . . . I would think the proper thing to do is to concede that this is a point where you don’t have an argument.”

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The exchange came at a hearing on efforts by the Justice Department to overturn the Arizona law, which empowers police to question people they suspect are in the country illegally and has triggered a fierce national debate. {snip}

With Noonan, an appointee of President Ronald Reagan, so bluntly stating his views, legal experts said the government’s chances of having the injunction upheld may rest with the other two judges on Monday’s panel: Carlos T. Bea and Richard A. Paez.

Bea is also a Republican appointee and tends to vote with the court’s conservative wing, which could help Arizona’s chances. Paez is a Democratic appointee.

But Bea and Paez are Hispanic, and it is Hispanics who are most upset about the Arizona law. “Perhaps this is one area where Bea might not vote as a so-called conservative because he himself is an immigrant,” said Arthur Hellman, a University of Pittsburgh law professor and an expert on the 9th Circuit.

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Whatever the result, the panel’s decision is the first step on a long road: legal experts expect the case to reach the Supreme Court. It is unclear when the panel will rule.

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