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With the filing of Arizona’s appellate brief in the legal battle over state’s controversial immigration law the ball now shifts to the Obama Administration. Arizona Gov. Jan Brewer late last week lodged opening arguments in the 9th U.S. Circuit Court of Appeals with her brief challenging the preliminary injunction issued last month that prevented key portions of the law from taking effect. Also last week, in Nebraska, a federal judge handling two challenges to an ordinance banning the hiring, harboring or renting of private property to illegal immigrants decided the Nebraska Supreme Court should be first to rule on the ordinance adopted by the city of Fremont, Neb. The ordinance is similar to one in Hazleton, Pa., that has been the subject of recent litigation. That type of ordinance has been introduced in other sections of the country as well. The Arizona injunction was sought by the Obama Administration, which has until Sept. 23 to file its response to Gov. Brewer’s arguments in U.S. v. State of Arizona. Brewer, represented by John Bouma of Phoenix’s Snell & Wilmer, contends that the district court erred in finding that the United States was likely to prevail on the merits of its challenge to the law and that the injunction was in the public interest. Two critical sections of the law blocked by U.S. District Judge Susan Bolton would have required law enforcement officials to check the immigration status of anyone they suspected were in the country illegally and the status of anyone in custody in Arizona before being released from jail. Bolton said those provisions were preempted by federal law. “The fundamental premise of the United States’ argument is that [the Department of Homeland Security] has exclusive authority to determine whether and to what extent it may receive assistance from state and local authorities in the enforcement of federal immigration laws,” countered Bouma in the state’s 9th Circuit brief. “The United States’ position, however, is contradicted by express directives from Congress and well-established preemption law.” Congress, he argued, has repeatedly encouraged cooperation and assistance from state and local authorities in enforcing federal immigration laws. “And it is Congress’ intent — not DHS’s — that controls whether S.B. 1070 is preempted.” The district court misapplied the law, he added, by: misconstruing well-established principles of federal preemption law; disregarding its obligation to preserve the constitutionality of the act’s provisions and to presume that Arizona will implement the provisions in a constitutional manner; and ignoring the United States’ burden on a facial challenge to show that the provisions of S.B. 1070 are unconstitutional in all of their applications. The 9th Circuit has scheduled a Nov. 1 hearing on the appeal. In July, the National Conference of State Legislatures reported that bills similar to the one Arizona passed had been introduced in five state legislatures: South Carolina, Pennsylvania, Minnesota, Rhode Island and Michigan. Minnesota and South Carolina legislative sessions have ended. But immigration-related activity in state legislatures overall has been brisk. In the first six months of 2010, every state in regular session considered laws related to immigrants or immigration, according to the conference. State lawmakers introduced 1,374 bills and resolutions in 46 states relating to immigrants and refugees. The number of bill introductions is comparable to the first half of 2009, when 50 states considered more than 1,400 bills and resolutions pertaining to immigrants. Montana, Nevada, North Dakota and Texas are not in regular session in 2010. As of June 30, 44 state legislatures passed 191 laws and adopted 128 resolutions. Five bills were vetoed, for a total of 314 enacted laws and resolutions, a 21 percent increase over 2009. An additional 10 bills were pending governor’s approval. For the same period in 2009, 44 states had enacted 144 laws and adopted 115 resolutions; 23 were pending governor’s approval and three bills were vetoed. Delaware and North Carolina have introduced bills but have yet to enact legislation.

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