Judge questions suit against Arizona immigration law

A federal appellate judge expressed deep skepticism Monday abouta Justice Department lawsuit challenging Arizona's new immigrationlaw, leaving uncertain the Obama administration's chances ofstopping the law from taking effect.

Judge John Noonan grilled administration lawyers at a hearingbefore the U.S. Court of Appeals for the 9th Circuit. He took aim atthe core of the Justice Department's argument: that the Arizonastatute is "preempted" by federal law and is especially troublesomebecause it requires mandatory immigration status checks in certaincircumstances.

"I've read your brief, I've read the District Court opinion, I'veheard your interchange with my two colleagues, and I don'tunderstand your argument," Noonan told deputy solicitor generalEdwin Kneedler. "We are dependent as a court on counsel beingresponsive... . You keep saying the problem is that a state officeris told to do something. That's not a matter of preemption... . Iwould think the proper thing to do is to concede that this is apoint where you don't have an argument."

"With respect, I do believe we have an argument," said Kneedler,who asserts that the Arizona law is unconstitutional and threatenscivil liberties by subjecting lawful immigrants to "interrogationand police surveillance."

The exchange came at a hearing on efforts by the JusticeDepartment to overturn the Arizona law, which empowers police toquestion people they suspect are in the country illegally and hastriggered a fierce national debate. A federal judge in Phoenixissued a July injunction blocking the law's most contestedprovisions from taking effect. Arizona appealed, leading to theMonday hearing.

With Noonan, an appointee of President Ronald Reagan, so bluntlystating his views, legal experts said the government's chances ofhaving the injunction upheld may rest with the other two judges onMonday's panel: Carlos Bea and Richard Paez.

Bea is also a Republican appointee and tends to vote with thecourt's conservative wing, which could help Arizona's chances. Paezis a Democratic appointee.

But Bea and Paez are Hispanic, and it is Hispanics who are mostupset about the Arizona law. "Perhaps this is one area where Beamight not vote as a so-called conservative because he himself is animmigrant," said Arthur Hellman, a University of Pittsburgh lawprofessor and an expert on the 9th Circuit.

Bea did not make his position clear during Monday's argument, buthe sharply questioned Arizona's attorneys. "Your argument that astate can take a look at whether the federal government is notenforcing its laws... . You can enforce laws for the federalgovernment?" he asked. "If I don't pay my (federal) income taxes,can California sue me?"

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

The Justice Department lawsuit, filed in July, triggeredopposition from Republicans but praise from civil rights groups.

U.S. District Judge Susan Bolton in July put on hold provisionsof the law that would require police to check immigration status ifthey stop someone while enforcing other laws, allow for warrantlessarrests of suspected illegal immigrants and criminalize the failureof legal immigrants to carry their documentation.

Kneedler, a widely respected appellate lawyer, urged the judgesto uphold the injunction while the federal lawsuit proceeds. "Thisis an extraordinary state statute," he told the judges, saying thatprovisions such as the criminalization of failure to carryregistration papers "are clearly preempted ... it's a directregulation of immigration."

Arizona's lawyer, John Bouma, defended the law'sconstitutionality and said Arizona passed it because of "a federalgovernment that has been unable or unwilling to solve" the illegalimmigration problem.

Civil rights groups have said the law targets Hispanics, butBouma, a leading Phoenix lawyer, objected to that characterization."Arizona has a long and proud tradition of a Hispanic population,and nobody is trying to take away from that," he said.

AP-NY-11-01-10 1928EDT