From the introduction of Judge Paez’s opinion:
In April 2010, in response to a serious problem of unauthorizedimmigration along the Arizona-Mexico border, the Stateof Arizona enacted its own immigration law enforcement policy.Support Our Law Enforcement and Safe NeighborhoodsAct, as amended by H.B. 2162 (“S.B. 1070”), “make[s] attritionthrough enforcement the public policy of all state andlocal government agencies in Arizona.” S.B. 1070 § 1. Theprovisions of S.B. 1070 are distinct from federal immigrationlaws. To achieve this policy of attrition, S.B. 1070 establishesa variety of immigration-related state offenses and defines theimmigration-enforcement authority of Arizona’s state andlocal law enforcement officers.
Before Arizona’s new immigration law went into effect, theUnited States sued the State of Arizona in federal districtcourt alleging that S.B. 1070 violated the Supremacy Clauseon the grounds that it was preempted by the Immigration andNationality Act (“INA”), and that it violated the CommerceClause. Along with its complaint, the United States filed amotion for injunctive relief seeking to enjoin implementationof S.B. 1070 in its entirety until a final decision is made about its constitutionality. Although the United States requested thatthe law be enjoined in its entirety, it specifically argued facialchallenges to only six select provisions of the law. UnitedStates v. Arizona, 703 F. Supp. 2d 980, 992 (D. Ariz. 2010).
The district court granted the United States’ motion for apreliminary injunction in part, enjoining enforcement of S.B.1070 Sections 2(B), 3, 5(C), and 6, on the basis that federallaw likely preempts these provisions. Id. at 1008. Arizonaappealed the grant of injunctive relief, arguing that these foursections are not likely preempted; the United States did notcross-appeal the partial denial of injunctive relief. Thus, theUnited States’ likelihood of success on its federal preemptionargument against these four sections is the central issue thisappeal presents.1
We have jurisdiction to review the district court’s orderunder 28 U.S.C. § 1292(a)(1). We hold that the district courtdid not abuse its discretion by enjoining S.B. 1070 Sections2(B), 3, 5(C), and 6. Therefore, we affirm the district court’spreliminary injunction order enjoining these certain provisionsof S.B. 1070.
Judge Noonan, concurring with the opinion of the Court, wrote “separately to emphasize the intent of the statute and its incompatibility withfederal foreign policy..
The Arizona statute before us has become a symbol. Forthose sympathetic to immigrants to the United States, it is achallenge and a chilling foretaste of what other states mightattempt. For those burdened by unlawful immigration, it suggestshow a state could tackle that problem. It is not our function,however, to evaluate the statute as a symbol. We areasked to assess the constitutionality of five sections on theirface integrated by the intent stated in Section 1. If we readSection 1 of the statute, the statute states the purpose of providinga solution to illegal immigration into the United States.So read, the statute is a singular entry into the foreign policyof the United States by a single state. The district court properlyenjoined implementation of the four sections of the statute.
Judge Bea concurred in part and dissented in part:
Our task, then, is—or should be—to examine the Arizonalegislation and relevant federal statutes to determine whether,under the United States’ facial challenge, S.B. 1070 has applicationsthat do not conflict with Congress’s intent. I respectfullydissent from the majority opinion as to Sections 2(B)(entitled “Cooperation and assistance in enforcement of immigrationlaws; indemnification”) and 6 (entitled “Arrest byofficer without warrant”), finding their reasoning as to Congress’sintent without support in the relevant statutes and caselaw. As to Sections 3 and 5(C), I concur in the result and themajority of the reasoning, although I dissent to the portion ofthe majority’s reasoning which allows complaining foreigncountries to preempt a state law. I address S.B. 1070’s sectionsin numerical order, as the majority did.
This may go en banc, which could stall time before a cert petition.