Arizona Governor Jan Brewer (R) [official website] on Thursday filed the state's opening brief [text, PDF] in the US Court of Appeals for the Ninth Circuit [official website], asking the court to lift the preliminary injunction blocking Arizona's controversial immigration law [SB 1070 materials; JURIST news archive] from taking full effect. In the brief, Arizona argues that the preliminary injunction should be vacated because District Judge Susan Bolton applied the wrong legal standard in issuing the preliminary injunction. The brief argues the district court only found that the law was unconstitutional because it was "likely" to conflict with federal law. Arizona claims that, to prove a facial challenge to its law, the US must make "a clear showing that the provision is unconstitutional in all of its applications" and that this burden was not met. It further argues that the district court "erroneously accepted at face value all of the United States' factual assertions" to make its finding that the law conflicts with federal law. It claims that its law is constitutional because it mirrors federal immigration law and "reinforces Congress' objectives and carries out Congress'; intent to foster federal and state cooperation." The reply brief from the federal government is due September 23 with a hearing scheduled for November 1.
Last month, the Ninth Circuit denied Arizona's request for expedited appeal [JURIST reports]. The preliminary injunction [JURIST report] came at the request of the US Department of Justice (DOJ) [official website], which filed suit challenging the constitutionality of the law [JURIST report] last month. Bolton issued the injunction against provisions of the law requiring the verification of the immigration status of people reasonably suspected of being illegal immigrants, authorizing the warrantless arrest of those police have probable cause to believe have committed an offense that could lead to deportation and requiring noncitizens to carry their registration papers with them at all times. The law has been widely criticized as unconstitutional for allegedly legalizing racial profiling. The American Bar Association (ABA) [official website] filed an amicus curiae brief [JURIST report] in support of the DOJ lawsuit, following the submission of another amicus curiae brief [JURIST report] filed by the American Civil Liberties Union (ACLU) [advocacy website].