SAN FRANCISCO - Gov. Jan Brewer is making a bid this week to salvage part of what's left of the law she signed in 2010 aimed at illegal immigration.
Attorneys for the governor will argue Tuesday to the 9th U.S. Circuit Court of Appeals that Arizona has a legal right to arrest and prosecute those who, while violating any other law, harbor or transport someone they know, or should know, is in this country illegally. They want the court to reverse a ruling by U.S. District Judge Susan Bolton blocking the state from enforcing the measure as an invalid intrusion by the state into exclusively federal territory.
The issue of federal pre-emption was precisely why the U.S. Supreme Court already struck down three other provisions of SB 1070. The state was barred from enforcing a fourth by the 9th Circuit.
But the governor is hoping for a different outcome on this fight. Her attorneys are ready to argue that Arizona does have the right to prosecute those harboring illegal immigrants.
In issuing her injunction in 2010, Bolton pointed out it already is a federal crime to transport illegal immigrants within the country, to conceal their presence and to encourage someone to enter this country without authorization. That same law also makes it a crime to aid in any of these acts.
"While state officials are authorized to make arrests for these violations of federal law, the federal government retains exclusive jurisdiction to prosecute them," Bolton ruled.
But John Bouma, the lead attorney hired by Brewer, said that does not decide the issue.
"Arizona is not seeking to prosecute persons for violating (that federal law)," he wrote. "It is seeking to prosecute persons for similar conduct under Arizona law."
But the legal team arguing against the state said Congress has spelled out in detail what actions can be taken against those who harbor or aid illegal immigrants. That, they said, precludes the state from imposing its own regulations.
Linton Joaquin, an attorney with the National Immigration Law Center, said there would be no legal challenge if the state were having its own police officers enforce existing federal law. But that is not what is happening here.
"What the state is doing is going beyond that and creating a state criminal provision that then would vest the state courts with the ability to interpret how that law is applied," he said.
"Congress did not have that in mind," Joaquin said. He said federal lawmakers want immigration questions to be decided by federal courts and officials.
Joaquin pointed out the issue of federal pre-emption is precisely why the Supreme Court last year struck down three other provisions of SB 1070.
Attorney Kelly Kszywienski conceded the state lost the earlier arguments before the high court. But she said this law on harboring is different.
For example, the justices said Arizona cannot impose its own penalties on illegal immigrants seeking employment in the state.
But Kszywienski said that was because Congress specifically made seeking work a civil matter, not a criminal one. That put Arizona's law to criminally punish those would-be laborers in direct conflict with federal law.
Similarly, the Supreme Court rebuffed the state's argument that state officers should be able to decide when someone is "removable" from the country and can be detained, with the justices saying that is totally within the discretion of federal officials.
What's different, Kszywienski said, is that Arizona's "harboring" law parallels - and does not conflict with - federal regulation. That, she said, makes it permissible.
Brewer is not just fighting with the civil-rights groups challenging the law. The Obama administration itself has weighed in, asking the appellate court to reject the governor's legal arguments.
Stuart Delery, principal deputy assistant attorney general, said the state's arguments that the Arizona law does not conflict with federal statute "reflect a basic misunderstanding of controlling pre-emption principles."
Bouma, however, is arguing that Arizona has a legitimate need to intercede.
"Some of Arizona's most dangerous criminal activity - terrorism, drugs, smuggling, human smuggling and sex trafficking - involves the transporting or harboring of unlawfully present aliens," he wrote.
That theme has been echoed by Brewer's staff outside the courtroom.
"Arizona is uniquely impacted by the effects of illegal immigration and the harboring and transporting of illegal aliens," said gubernatorial press aide Matthew Benson. "We see it in our neighborhoods with the drop houses, with the sex trafficking, the torture and the rest."
Benson acknowledged that Arizona already has laws against kidnapping and prostitution.
"But this allows law enforcement a special tool to go after this unique issue," he said. "This is different than simple kidnapping."
Delery, however, said those concerns "cannot withstand preemption if it has the effect of interfering with the federal regulation of immigration."
On StarNet: Find extensive coverage of immigration issues at azstarnet.com/border