Ninth Circuit: Arizona Immigration law unconstitutional

The United States Court of Appeals for the Ninth Circuit has declared unconstitutional the key provisions of the Arizona law S.B. 1070, which provides, in part:


S.B. 1070, Arizona

“Any person who is arrested shall have the person’s immigration status determined before the person is released.”
Sec. 1. Intent
The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona. The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.

The 2 -1 decision includes a bitter dissent by Judge Bea who ridicules the majority with the predictable reference to Humpty Dumpty "“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” 


Judge John Noonan, concurring,  makes the most powerful argument, to my mind.  Determining immigration status is a federal job.  Aliens are, by definition, the subjects or citizens of foreign countries.  The United States, not the states regulates our relations with foreign nations.  Federal preemption operates to supplant Arizona's own foreign policy, Noonan says:

The foreign policy of the United States preempts the field entered by Arizona. Foreign policy is not and cannot be determined by the several states. Foreign policy is determined by the nation as the nation interacts with other nations. Whatever in any substantial degree attempts to express a policy by a single state or by several states toward other nations enters an exclusively federal field.

Arizona's drive them out, attrition through enforcement, etc. law certainly appeals to one sort of common sense.  Not the "common sense" that is most pronounced here - where the Statue of Liberty resides.  The dilemma of immigration is that we have the right and need to control our borders; but now that so many millions are here, with families of mixed native born and immigrant enmeshed in our society, sorting it out, rather than driving them out seems to me to be the common sense of it.