An attorney for Gov. Jan Brewer told federal appellate judges Tuesday they should let Arizona enforce its laws against harboring illegal immigrants because there's no evidence anyone is in danger of actually being prosecuted.
That bit of circular logic from Kelly Kszywienski comes because the issue before the 9th Circuit Court of Appeals is an injunction issued last year by a federal judge in Phoenix. U.S. District Court Judge Susan Bolton barred enforcement concluded that the measure, which makes it a crime to harbor or transport those someone knows or should know is an illegal immigrant, is preempted by federal law.
But Kszywienski told the three-judge panel here they don't need to decide that issue.
She said to get an injunction, the challengers -- individuals and groups that aid illegal immigrants -- need to prove that prosecution for their activities is "certainly impending.'' Kszywienski said there is no such proof here.
But Omar Jadwat, an attorney with the American Civil Liberties Union, disagreed.
"There's standing as long as there's a reasonable fear on the part of the plaintiff,'' he said.
Jadwat specifically mentioned Luz Santiago, a pastor who said she provides sanctuary to illegal immigrants. That argument struck a chord with the court.
"Sanctuary, as I understand the term, and it's an old term with great many meanings,'' said Judge Carlos Bea. "But one is to give shelter to people to avoid arrest,'' he said.
Bea told Kszywienski that sounds like someone who would be in fear of prosecution under this law.
"I think that's pretty vague what is sanctuary,'' she responded. "It doesn't say that she tries to hide them from federal authorities.''
"She's certainly trying to have them avoid arrest,'' Bea responded. "That's what sanctuary is all about.''
If the court finds there is a fear of prosecution -- meaning the challengers had the right to sue in the first place -- the outcome of the case then likely will turn on the key question of whether the Arizona law illegally conflicts with federal law -- and, potentially more significant, federal immigration policy.
Jadwat pointed out that the U.S. Supreme Court just last year voided several other provisions of SB 1070 because it left decisions related to immigration in the hands of the state.
"It took the federal government out of the process out of enforcing that aspect of federal immigration law,'' he said. "In taking the federal government out of the process, you open it up to damage to foreign relations, you open it up to that people could be prosecuted (under the state law) who the federal government would not choose to prosecute.''
Mark Stern, an assistant U.S. attorney, said the law essentially amounts to Arizona deciding that it can enact its own laws against harboring despite the fact that the federal government has its own statutes.
Judge Carlos Bea said that, by itself, does not make the law illegal.
He pointed out, for example, there are federal laws against smuggling illegal drugs. Bea said none of that keeps states from enacting their own drug laws.
But Stern said immigration laws are different. More to the point, Congress specifically gives federal officials discretion in when to enforce those laws and when not to enforce them.
Letting the state step in, Stern said, ignores why Congress gave that discretion.
"The federal government, unlike the state, is going to be cognizant and responsive to the concerns of all the states in the country as well as foreign countries,'' he said.
That goes directly to the question of the impact of the harboring law -- and whatever the court rules -- on those "dreamers'' who are accepted into the Obama administration's "deferred action'' program.
It says those who arrived as children and meet certain other qualifications are entitled to remain without fear of deportation. They also are given permission to work legally in this country.
But the governor, in a separate legal action in federal court over state driver's licenses, is arguing that these individuals in the program, potentially 80,000 in Arizona, are not "authorized'' to be in this country despite the federal action. That raises the very conflict between federal goals and state enforcement that Stern told the court.
In defending the harboring provision, Kszywienski acknowledged that other parts of SB 1070 were previously rejected by the high court.
She conceded that Arizona cannot have laws which conflict with federal statutes. That, she said, is what made it illegal for state lawmakers to make it a crime for illegal immigrants to seek work in Arizona, as there is no such parallel criminal law.
"There is no specific conflict here,'' she argued.
As proof, she pointed to a 2011 Supreme Court decision which upheld a separate Arizona law which makes it a violation of state law for companies to knowingly hire undocumented workers. She said his law, targeting those who aid illegal immigrants -- and not the immigrants themselves -- fits that same category.
In her effort to allow Arizona to enforce the law, Kszywienski pointed out the statute does not allow someone to be arrested solely for harboring or transporting an illegal immigrant. She said the individual needs to be committing some other offense to be prosecuted for harboring an illegal immigrant.
But Judge John Noonan called that verbiage "nonsense'' and "gibberish,'' questioning whether it actually has any legal meaning.