By Elizabeth Wydra, Chief Counsel

To recap, the Court seems very likely to uphold the Arizona district court’s injunction on Section 3, the provision that adds criminal penalties for failing to register or carry identification–the “criminalization of mere undocumented presence”–because it so obviously goes beyond federal law, and Section 5, the provision that allows for criminal punishment of undocumented immigrants who seek to work in Arizona, because it directly conflicts with 9th Circuit precedent that holds that Congress has chosen to address the problem of employing undocumented immigrants through sanctions on employers, not employees.

The judges seemed less sure of what to do with Section 2–which requires state and local law enforcement officers to determine the immigration status of any person whom they stop or detain whenever “reasonable suspicion” exists that the person might be an illegal alien–and Section 6, which allows a state officer to arrest a person without a warrant if the officer has probable cause to believe that the person has previously committed an offense that would render the person removeable from the United States. On the one hand, the judges pushed Arizona’s lawyer on the potential due process violations inherent in these two provisions, noting, for example, that Section 2 could result in unnecessary and lengthy detention, and the complexities of determining what offenses render a person removeable (related to Section 6). But the judges also questioned Kneedler closely–even chastising him for failing to have clarified the issue for them and pushing him to concede the points–on how Section 2 and 6 could be in conflict with federal law when federal statutes appear to set up a system whereby the federal immigration authorities and the states shall cooperate. It is more of a toss-up as to whether the court will uphold the injunction with respect to sections 2 and 6 of the Arizona law.

An opinion could be weeks or months away, depending on how clear the judges are on their respective positions and whether there are any separate opinions (for example, a dissent or “concurrence”).

Thank you for joining us for this live-blog of the 9th Circuit’s hearing on Arizona’s SB 1070 immigration law.