Judges query both sides on Arizona immigration law

SAN FRANCISCO Mon Nov 1, 2010 5:23pm EDT

Protesters (L), against SB 1070, yell at police officers outside the Phoenix courthouse in Phoenix, Arizona, July 29, 2010. REUTERS/Rick Scuteri

Protesters (L), against SB 1070, yell at police officers outside the Phoenix courthouse in Phoenix, Arizona, July 29, 2010.

Credit: Reuters/Rick Scuteri

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SAN FRANCISCO (Reuters) - Arizona Monday asked appellate judges to let it put into effect a controversial crackdown on illegal immigrants, saying the state bordering Mexico had to step in when the federal government had failed.

Arizona's law using state and local police to determine immigration status has become a national political issue, and the court hearing came a day before the United States votes in elections expected to sharply diminish the Congressional support of President Barack Obama, whose administration sued to stop the law.

The three-judge panel considering whether to let a temporary hold on the law stand while the constitutionality of the statute is weighed showed skepticism toward arguments from both sides, and asked questions that could open the way to allowing parts of the law to go into effect.

A federal district judge in July put on hold key components of the state law known as SB 1070, arguing immigration matters are the federal government's responsibility, but Arizona insists it should be able to proceed while the appeals battle in higher courts takes place, leading to the Monday hearing.

"There's no reason why Arizona should stand by and suffer the consequences of a broken system, when (it) has 15,000 well-trained peace officers that Washington authorities aren't allowing to help fix the system. That's what Arizona wants to do," John Bouma, representing the state, told the panel.

The Obama administration's attorney said Arizona -- which under the law would require police in the course of a lawful stop to determine the status of anyone they suspect is in the country illegally -- usurped federal responsibility.

A majority of Americans favor the Arizona statute, polls show, but opinions are sharply divided on the law and what to do about some 11 million illegal immigrants in the country.

"If we were to interpret the statute in a way that is constitutional, would Arizona be bound by our interpretation?" asked Senior Ninth Circuit Judge John Noonan.

"Yes" responded Bouma.

Noonan later questioned Deputy Solicitor General Edwin Kneedler on his argument the law preempted federal rights.

"You keep saying there is a problem that a state officer is told to do something. That's not a matter of preemption," Noonan said.

But judges also were skeptical of enforcement of a part of the law barring work by illegal aliens, saying federal rules avoid punishing employees while their immigration status is determined.

Republican Governor Jan Brewer, who Tuesday seeks her first election to the state's top job after inheriting it when her predecessor left for the federal government, told reporters after the hearing that she believed a decision could come as soon as a couple of weeks, although that would be quick for the appeals court.

"If there is a split decision, then I'll be grateful for my side of the split," she said, adding she would continue the general defense of the law in the U.S. Supreme Court.

(Additional reporting by Tim Gaynor in Phoenix; Editing by Jerry Norton)

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