Hot off the docket: http://www.ca9.uscourts.gov/datastore/general/2011/04/11/10-16645_opinion.pdf
So this panel at least thinks that key parts of the law are likely preempted. Are they right? I think they are, as this is what I predicted.
More thoughts from me, and minor gloating directed at Bricker, to come, but I thought i would solicit feedback first.
Eta: title is unfortunate typo. Bad iPhone, bad.
[Mod mod]Changed “lawn” to “law” in title. Will change it back if OP was really about keeping those pesky furriners off his grass.[Mod mod]
Could you translate that into moron for me? And maybe condense it down a bit? I too would like to gloat.
pdf warning advisible.
It says PDF right in the link! 
Emack: the gist is that they agree with the district court that the federal government’s framework for dealing with immigration prevents states from taking matters into their own hands. But this is just a preliminary injunction, meaning they could change their mind once the whole thing is fully litigated.
IANAL but from the following linked article this ruling upholds the lower court ruling.
Washington Post story.
Evidently, this is not technically a ruling on the Constitutionality of the law, per se, but a ruling on whether the judge had a right to impose an injunction. Still, it has the effect of continuing to prevent the law from being enforced…
The Ninth Circuit is the most reversed federal circuit.
I have always acknowledged that the weakest point on this law – or, if your prefer, the point on which it’s most vulnerable to being overturned – is federal preemption. For example, see this post::
The law hasn’t been ruled on at all per se. Only the injunction.
The fact that thge 9th is often overturned is emblematic of nothing but the different partisan make of the the 9th and the Supreme Court. I’m pretty sure that if this gets to SCOTUS, the decision will break down along predictable party lines.
What happens to the Ninth Circuit’s record if you adjust for Reinhardt not being on the panel and per capita size? (I’m kidding, mostly.)
Oh, I was thinking of another quote of yours, Bricker:
Now, the law was amended after that exchange, I think. So I’m ok with regarding the bet as nullified. And, of course, this is not the final judgment. Which is why my gloating is minor. But let’s be clear about your position, which was not one of “I’ll be mildly surprised.”
I said “mildly surprised” a month after accepting the bet (May 2010); it’s not a recent revision of my estimation in response to the Ninth Circuit’s actions.
My position remains the same: I don’t believe that this is a legitimate case of federal preemption, and I don’t believe the courts will see it that way. I was confident enough to offer a $100 bet, and accept a bet about personal honor as a legal analyst. From my perspective, the change in the law was at best neutral to the issue of federal preemption, and only helped the law’s palatibility overall, so I don’t wish to consider the bet void on that basis.
But since the change in the law put your side in worse position, I’d be willing to permit you to withdraw from the wager.
Otherwise, I’m good.
I wold submit that your confidence is based entirely on knowing that the Supreme Court has a conservative majority and not on the actual merits of the case. If SCOTUS had a liberal majority, you wouldn’t be betting.
Which “merits” do you mean?
That question probably doesn’t matter, because either way, you’re right (in a sense, anyway) and wrong (in another sense).
If you’re talking about the merits of the federal preemption question, this is not an area of law that always lends itself to utterly clear determinations. Look at American Insurance Association v Garamendi. At issue there was a California law, the Holocaust Victim Insurance Relief Act of 1999, that was intended to allow Holocaust survivors and their families to collect on life insurance payments from policies issued to Holocaust decedents by German insurance companies. Without being able to point to any specific provision of federal law, treaty, or even any statement of an executive brach contrary purpose, the Supreme Court said:
But this was a 5-4 decision, and who were the dissenters? Scalia, Thomas, Ginsberg, and Stevens – hardly “the conservatives” or “the liberals” in a bloc. Justice Ginsburg wrote the dissent, which Stevens, Thomas, and Scalia joined, and she said:
It’s obvious, I suppose, which approach I feel is correct.
So how are you right? My confidence is based on the current Court’s composition, yes, but not as a strict “liberal/conservative” breakout, but on what the justices have said in the past on similar issues. Obviously, if the current Court included O’Connor and Souter, I might sing a different tune.
I incorrectly assumed that the staking of a wager reflected some conviction beyond that which could be described as subjecting you to mild surprise if wrong.
When you say, “I don’t believe the courts will see it that way,” you’re excluding the U.S. District Court for the District of Arizona and the Ninth Circuit Court of Appeals, which seems like an odd definition of “courts.” Or do you mean that something about further factual development might change the outcome?
As to the wager, I haven’t looked closely at what was changed in the law. We can keep our wager in place regardless, given its somewhat frivolous nature. I strongly suspect something will change before this case sees SCOTUS on final judgment.
As to the opinion itself, I don’t think they left themselves a lot of leeway for going the other way on final judgment. Certainly Noonan didn’t. So I suspect that if neither Congress nor AZ amends something before then, this will see SCOTUS. But there might be cases decided by SCOTUS in the interim that affect the outcome.
Preemption is an interesting issue from a political perspective. In recent years, the conservative wing has been more likely to find preemption than their states-rights tendencies might suggest. I’m thinking in particular of Buckman, in which Rehnquist wrote:
A lot of that language applies with even more force to the regulation of immigration, it seems to me. Immigration is clearly a federal concern, not traditionally regulated by states. And the federal government strikes a number of delicate balances with immigration law, not least of which is our foreign policy, another area of particular federal concern.
If I’m standing at the craps table, and someone says, “I’ll bet you 2 to 1 it’s a seven!” then I’ll take that bet, even though I would feel only mild surprise if a seven actually comes up.
I meant the final judgement rendered by the court system.
Supreme Court heard oral arguments today.
Court observers seem to think the Court is leaning towards letting Arizona keep their law. The only area where there seemed to be some sentiment for stomping on them was the trespass – that is, Arizona making it a crime to be in Arizona if you’re an undocumented alien.
Someone should email Scalia a copy of Buckman. Based on the argument, in which he maintains that enforcement priorities have never been the basis for preemption, he seems to have forgotten his participation in that case.
Alas, we’re still only at the PI.
Huh, I thought this was a canard. I had understood that because of its volume, the 9th circuit was both the most overturned and the most reaffirmed, and that percentage wise, they are about on par with other circuits. Am I mistaken?
From your link:
Debate away. But for the purposes of my comment, yes, the Supreme Court is more correct, in that it definitively sets the law of the land. If the discussion revolves around whether a particular legal proposition will ultimately survive, and someone points out the Ninth Circuit opposes it, the fact that the Ninth gets smacked down as often and as thoroughly as it does is certainly relevant for predicting what the ultimate fate will be.
If you wish to argue that there is some other authority, more “right” than SCOTUS, go ahead. My point was simply what the law will end up being. And for that question, yes: Supreme Court opinions are in fact more correct.