Judges ask tough questions on Arizona immigration law

SAN FRANCISCO Tue Nov 2, 2010 8:29am EDT

Arizona Governor Jan Brewer enters a news conference following a hearing over the state's SB1070 immigration law at the U.S. Ninth Circuit Court of Appeals in San Francisco, November 1, 2010. REUTERS/Robert Galbraith

Arizona Governor Jan Brewer enters a news conference following a hearing over the state's SB1070 immigration law at the U.S. Ninth Circuit Court of Appeals in San Francisco, November 1, 2010.

Credit: Reuters/Robert Galbraith

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SAN FRANCISCO (Reuters) - U.S. judges considering whether to let Arizona's crackdown on illegal immigrants take effect asked attorneys tough questions on Monday about the constitutionality of the law and whether federal authority prevents the state from taking action.

Arizona's law would require police to determine the immigration status of a person they have detained and suspect is in the country illegally. The measure has attracted international attention and drawn equal parts praise and condemnation.

The hearing before a three-judge panel of the 9th U.S. Circuit Court of Appeals came a day before Americans vote in midterm elections expected to sharply erode congressional support for President Barack Obama, whose administration sued to stop the law.

The panel is considering whether to let a temporary hold on the law stand while the constitutionality of the statute is weighed.

At Monday's hearing, senior Ninth Circuit Judge John Noonan wondered aloud if he and his colleagues could tailor the law in a way to make its enactment constitutionally sound.

In July, a federal district court judge 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 higher courts examine the issue of constitutionality.

"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," attorney John Bouma, who is representing Arizona, told the panel.

U.S. Deputy Solicitor General Edwin Kneedler, the Obama administration's attorney, said Arizona usurped federal responsibility.

Noonan questioned Kneedler about his argument that the law pre-empted federal rights.

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

Noonan also took issue with part of the Arizona law that would bar work by illegal aliens, saying a previous court decided that federal rules avoid punishing employees while their immigration status is determined.

"We are bound by that decision. End of argument," Noonan said.

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

After the hearing, Republican Governor Jan Brewer, who signed the bill into law, said, "if there is a split decision, then I'll be grateful for my side of the split."

Brewer, who took over the state's top job when her predecessor went to work for the federal government, is running for governor in Tuesday's election.

(Additional reporting by Tim Gaynor in Phoenix; Editing by Mary Milliken and Stacey Joyce)

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