# Ninth Circuit Upholds Injunction Against AZ Immigration Law **URL:** \ **Category:** Great Debates\ **Created:** [April 11, 2011, 6:36pm UTC](https://boards.straightdope.com/t/ninth-circuit-upholds-injunction-against-az-immigration-law/577982 "2011-04-11T18:36:18Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 11, 2011, 6:36pm UTC](https://boards.straightdope.com/t/ninth-circuit-upholds-injunction-against-az-immigration-law/577982/1 "2011-04-11T18:36:18Z")
Hot off the docket: [http://www.ca9.uscourts.gov/datastore/general/2011/04/11/10-16645\_opinion.pdf](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. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [April 11, 2011, 6:44pm UTC](https://boards.straightdope.com/t/ninth-circuit-upholds-injunction-against-az-immigration-law/577982/2 "2011-04-11T18:44:19Z")
[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] ---
**Author:** ![emacknight](https://avatars.discourse-cdn.com/v4/letter/e/3ec8ea/32.png) [@emacknight](https://boards.straightdope.com/u/emacknight)\ **Post date:** [April 11, 2011, 7:05pm UTC](https://boards.straightdope.com/t/ninth-circuit-upholds-injunction-against-az-immigration-law/577982/3 "2011-04-11T19:05:58Z")
> [@Richard\_Parker](#): > > Hot off the docket: [http://www.ca9.uscourts.gov/datastore/general/2011/04/11/10-16645\_opinion.pdf](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. Could you translate that into moron for me? And maybe condense it down a bit? I too would like to gloat. ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [April 11, 2011, 7:08pm UTC](https://boards.straightdope.com/t/ninth-circuit-upholds-injunction-against-az-immigration-law/577982/4 "2011-04-11T19:08:31Z")
pdf warning advisible. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 11, 2011, 7:12pm UTC](https://boards.straightdope.com/t/ninth-circuit-upholds-injunction-against-az-immigration-law/577982/5 "2011-04-11T19:12:57Z")
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. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [April 11, 2011, 7:13pm UTC](https://boards.straightdope.com/t/ninth-circuit-upholds-injunction-against-az-immigration-law/577982/6 "2011-04-11T19:13:37Z")
> [@emacknight](#): > > Could you translate that into moron for me? And maybe condense it down a bit? I too would like to gloat. IANAL but from the following linked article this ruling upholds the lower court ruling. > [@](#): > > (From the Decision) > > The relevant provisions of S.B. 1070 facially conflict with Congressional intent. > > … > > We stress that the question before us is not, as Arizona has portrayed, whether state and local law enforcement officials can apply the statute in a constitutional way… This formulation misses the point: there can be no constitutional application of a statute that, on its face, conflicts with Congressional intent and therefore is preempted by the Supremacy Clause. > > … > > By imposing mandatory obligations on state and local officers, Arizona interferes with the federal government’s authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed DHS agents. > > SOURCE: [http://www.tucsonsentinel.com/local/report/041111\_sb1070\_appeals](http://www.tucsonsentinel.com/local/report/041111_sb1070_appeals) ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [April 11, 2011, 7:25pm UTC](https://boards.straightdope.com/t/ninth-circuit-upholds-injunction-against-az-immigration-law/577982/7 "2011-04-11T19:25:25Z")
[Washington Post](http://www.washingtonpost.com/politics/appeals-court-upholds-justice-challenge-on-ariz-law/2011/04/11/AFbyUKLD_story.html) 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… ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 12, 2011, 1:24am UTC](https://boards.straightdope.com/t/ninth-circuit-upholds-injunction-against-az-immigration-law/577982/8 "2011-04-12T01:24:32Z")
1. The Ninth Circuit is the most reversed federal circuit. 2. 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:](http://boards.straightdope.com/sdmb/showpost.php?p=12482731&postcount=84): > [@Arizona's immigration law - genius](https://boards.straightdope.com/t/arizonas-immigration-law-genius/540248/84): > > Well, if it gets overturned on the basis over preemption, I’ll be mildly surprised, but not shocked to my very core. I regard the preemption argument as wrong but tenable. > > If it’s overturned because of some Equal Protection-type claim, I will humbly and sincerely eat helping after helping of crow. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [April 12, 2011, 1:28am UTC](https://boards.straightdope.com/t/ninth-circuit-upholds-injunction-against-az-immigration-law/577982/9 "2011-04-12T01:28:23Z")
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. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 12, 2011, 11:57am UTC](https://boards.straightdope.com/t/ninth-circuit-upholds-injunction-against-az-immigration-law/577982/10 "2011-04-12T11:57:22Z")
1. 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.) 2. Oh, I was thinking of another quote of yours, **Bricker** : > [@Bricker](#): > > OK, let’s make it interesting – $100 says that the law survives a pre-emption challenge. It may get scuttled at the district court, but the final judgement (circuit or scotus) will be that it’s not pre-empted. > > Bet would be a push if Congress passes a new law that might more definitively pre-empt it. > > What do you say? > [@Richard Parker](#): > > I would say I cannot ethically take that bet. But I’m happy to simply bet personal honor as the more accurate legal analyst. I’ll even give you 3:1 odds. > [@Bricker](#): > > I’ll accept your counteroffer. A win for me will give me the right to point out that I’m three times the legal analyst you are. That might be worth more than the $100, come to think of it. 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.” ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 12, 2011, 1:05pm UTC](https://boards.straightdope.com/t/ninth-circuit-upholds-injunction-against-az-immigration-law/577982/11 "2011-04-12T13:05:27Z")
> [@Richard\_Parker](#): > > 1. 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.) > > 2. 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. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [April 12, 2011, 1:10pm UTC](https://boards.straightdope.com/t/ninth-circuit-upholds-injunction-against-az-immigration-law/577982/12 "2011-04-12T13:10:39Z")
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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 12, 2011, 1:43pm UTC](https://boards.straightdope.com/t/ninth-circuit-upholds-injunction-against-az-immigration-law/577982/13 "2011-04-12T13:43:09Z")
> [@Diogenes\_the\_Cynic](#): > > 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: > [@](#): > > California seeks to use an iron fist where the President has consistently chosen kid gloves. The efficacy of the one approach versus the other is beside the point, since preemption turns not on the wisdom of the National Government’s policy but on the evidence of conflict. Here, the evidence is more than sufficient to demonstrate that HVIRA stands in the way of the President’s diplomatic objectives 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: > [@](#): > > Although the federal approach differs from California’s, no executive agreement or other formal expression of foreign policy disapproves state disclosure laws like the HVIRA. Absent a clear statement aimed at disclosure requirements by the “one voice” to which courts properly defer in matters of foreign affairs, I would leave intact California’s enactment. 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. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 12, 2011, 10:25pm UTC](https://boards.straightdope.com/t/ninth-circuit-upholds-injunction-against-az-immigration-law/577982/14 "2011-04-12T22:25:18Z")
> [@Bricker](#): > > 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. 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. > [@Bricker](#): > > 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. 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: > [@](#): > > Policing fraud against federal agencies is hardly “a field which the States have traditionally occupied,” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), such as to warrant a presumption against finding federal pre-emption of a state-law cause of action. To the contrary, the relationship between a federal agency and the entity it regulates is inherently federal in character because the relationship originates from, is governed by, and terminates according to federal law. Cf. Boyle v. United Technologies Corp., 487 U.S. 500, 504—505 (1988) (allowing pre-emption of state law by federal common law where the interests at stake are “uniquely federal” in nature). Here, petitioner’s dealings with the FDA were prompted by the MDA, and the very subject matter of petitioner’s statements were dictated by that statute’s provisions. Accordingly–and in contrast to situations implicating “federalism concerns and the historic primacy of state regulation of matters of health and safety,” Medtronic, 518 U.S., at 485–no presumption against pre-emption obtains in this case. > > ``` > Given this analytical framework, we hold that the plaintiffs’ state-law fraud-on-the-FDA claims conflict with, and are therefore impliedly pre-empted by federal law.2 The conflict stems from the fact that the federal statutory scheme amply empowers the FDA to punish and deter fraud against the Agency, and that this authority is used by the Agency to achieve a somewhat delicate balance of statutory objectives. The balance sought by the Agency can be skewed by allowing fraud-on-the-FDA claims under state tort law. > > ``` 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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 12, 2011, 10:33pm UTC](https://boards.straightdope.com/t/ninth-circuit-upholds-injunction-against-az-immigration-law/577982/15 "2011-04-12T22:33:57Z")
> [@Richard\_Parker](#): > > 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. 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. > [@](#): > > 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? I meant the final judgement rendered by the court system. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 26, 2012, 3:52am UTC](https://boards.straightdope.com/t/ninth-circuit-upholds-injunction-against-az-immigration-law/577982/16 "2012-04-26T03:52:10Z")
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. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 26, 2012, 4:18am UTC](https://boards.straightdope.com/t/ninth-circuit-upholds-injunction-against-az-immigration-law/577982/17 "2012-04-26T04:18:30Z")
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. ---
**Author:** ![SantaMan](https://avatars.discourse-cdn.com/v4/letter/s/da6949/32.png) [@SantaMan](https://boards.straightdope.com/u/SantaMan)\ **Post date:** [April 28, 2012, 5:47am UTC](https://boards.straightdope.com/t/ninth-circuit-upholds-injunction-against-az-immigration-law/577982/18 "2012-04-28T05:47:43Z")
> [@Bricker](#): > > 1. The Ninth Circuit is the most reversed federal circuit. 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? ---
**Author:** ![SantaMan](https://avatars.discourse-cdn.com/v4/letter/s/da6949/32.png) [@SantaMan](https://boards.straightdope.com/u/SantaMan)\ **Post date:** [April 28, 2012, 5:54am UTC](https://boards.straightdope.com/t/ninth-circuit-upholds-injunction-against-az-immigration-law/577982/19 "2012-04-28T05:54:47Z")
[http://westreferenceattorneys.com/2011/07/should-the-ninth-circuit-be-judged-by-reversal-rates/](http://westreferenceattorneys.com/2011/07/should-the-ninth-circuit-be-judged-by-reversal-rates/) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 28, 2012, 1:05pm UTC](https://boards.straightdope.com/t/ninth-circuit-upholds-injunction-against-az-immigration-law/577982/20 "2012-04-28T13:05:27Z")
> [@SantaMan](#): > > [http://westreferenceattorneys.com/2011/07/should-the-ninth-circuit-be-judged-by-reversal-rates/](http://westreferenceattorneys.com/2011/07/should-the-ninth-circuit-be-judged-by-reversal-rates/) From your link: > [@](#): > > The Times points out that while seventy-nine percent may not be unusual in terms of past records, twelve of the reversals this year were unanimous which, it argues, may indicate that the Ninth Circuit is more “often out of step with even the high court’s liberal justices.” But implicit in this remark is an assumption that Supreme Court opinions, even if unanimous, are somehow more “correct” – certainly, a debatable conclusion. 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. [Next page](https://boards.straightdope.com/t/ninth-circuit-upholds-injunction-against-az-immigration-law/577982.md?page=2)