9th Circuit Judge John T. Noonan, in a concurring opinion, was even more blunt. He wrote:
Federal foreign policy is a pleonasm. What foreign policy can a federal nation have except a national policy? That fifty individual states or one individual state should have a foreign a foreign policy is absurdity too gross to be entertained. In matters affecting the intercourse of the federal nation with other nations, the federal nation must speak with one voice.
2. There was a partial dissent. 9th Circuit Judge Carlos Bea declared that the provision in Arizona's new law -- Section 2(B) -- that requires state officials to check the immigration status of those it lawfully detains was not preempted by federal immigration law. "As I see it," Judge Bea wrote, "Congress has clearly expressed its intention that state officials should assist federal officials in checking the immigration status of aliens..." Judge Bea also endorsed Section 6 of the statute, which permits warrantless arrests of those people suspected of being unlawful immigrants. On that point, he wrote:
The majority's analysis of Section 6 will come as a surprise to all parties involved in this case. It ignores the contentions in the filings before the district court, the district court's rationale, the briefs filed in this court, and what was said by the well-prepared counsel, questioned at our oral argument. Indeed, it is an argument and conclusion volunteered by the majority, but carefully avoided by the United States-- probably because it conflicts with the president policy of the Department of Justice's Office of Legal Counsel.
Look for Judge Bea's dissent to become a rallying cry for Gov. Brewer and her supporters as they press the case forward -- even though Judge Bea himself found several other portions of the Arizona law unconstitutional. With friends like these....
3. Now that the 9th Circuit has issued its long-awaited ruling, the substantive case over SB 1070 presumably may proceed at last toward trial. To her credit, U.S. District Judge Susan Bolton has been chomping at the bit to get to the merits of the challenge to the Arizona measure and her recent complaints about the 9th Circuit's languid place in resolving the appeal probably pushed along Monday's ruling. This is good news all around because only after a trial on the merits here is the United States Supreme Court likely to take a look at the preemption issues raised in this case. And only such a review (and opinion) will there be some measure of certainty and finality for the parties. Remember, we are still much closer to the beginning than the end of the legal story here. And so far the rulings all have been, as their titles suggest, preliminary.
4. I don't expect Arizona to appeal Monday's ruling. But don't forget that the state isn't just playing defense here with the feds. The state has countersued the federal government, arguing among other things that it requires protection
from foreign "invasion" by unlawful immigrants. The feds are expected to respond
to such silliness in the next few weeks with a motion to dismiss the claims. This angle to the larger fight will generate its own wave of rulings and likely appeals (and media coverage). This will be mostly a sideshow to the main event -- whether those provisions are constitutional or not -- but a thoroughly entertaining one, especially if, as expected, the federal courts reject Arizona's counterclaims, too.
5. Unlike the constitutional showdown over the Patient Protection and Affordable Care Act, which I reckon
will come to the Supreme Court well in time for next year's presidential primary season, the Arizona immigration case now almost certainly won't be fully resolved in time to be a factor in the 2012 race. If Judge Bolton holds her trial later this year, and then issues her ruling weeks or months later, the 9th Circuit likely won't get the case back before it until early next year. In turn, this means that United States v. Arizona
likely won't come to the High Court for oral argument until the October 2012 Term. And who knows
where the immigration debate will be by then -- or which justices will be around to receive it?Drop-down thumbnail credit: Robert Galbraith/Reuters