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Ninth Circuit Lets Foreign Governments File Amicus Briefs in Challenge to Arizona’s Immigration Laws

(Eugene Volokh)

Politico reports on this, and on the Arizona Gov. Jan Brewer’s reaction:

Republican Gov. Jan Brewer on Tuesday asked a federal court to disallow foreign governments from joining the U.S. Department of Justice lawsuit to overturn the law. 

The move comes in response to a 9th Circuit Court of Appeals ruling issued Monday, allowing nearly a dozen Latin American countries — Mexico, Argentina, Bolivia, Brazil, Costa Rica, Ecuador, El Salvador, Nicaragua, Paraguay, Peru and Chile — to submit friend-of-the-court briefs in Justice’s challenge to SB 1070, which Brewer signed into law in April and is considered one of the nation’s toughest immigration-enforcement measures. 

“As do many citizens, I find it incredibly offensive that these foreign governments are using our court system to meddle in a domestic legal dispute and to oppose the rule of law,” [Gov. Brewer said].

“What’s even more offensive is that this effort has been supported by the U.S. Department of Justice. American sovereignty begins in the U.S. Constitution and at the border,” she added. “I am confident the 9th Circuit will do the right thing and recognize foreign interference in U.S. legal proceedings and allow the State of Arizona to respond to their brief.”

My reaction is: So what? I have nothing against “American sovereignty,” and tend to be skeptical of proposals that would dilute it. But there’s nothing wrong, I think, with branches of the American sovereign government listening to the views of foreign governments. There’s nothing wrong with foreign governments being allowed to submit statements to Congressional hearings, or submit petitions to the President, or to submit amicus briefs to U.S. courts.

Moreover, consider the arguments made by the Mexico government’s brief:

I. SB 1070’s Intrusion in International Affairs Impedes International Relations and Bilateral Collaboration in Cross-Border Issues
A. SB 1070 Will Severely Hinder Mexico-Arizona Trade and Tourism
B. SB 1070 Derails Efforts Towards Comprehensive Immigration Reform and Collaborative Border Management
C. SB 1070 Obstructs International and Border Collaboration to Combat Drug Issues
II. SB 1070 Poses a Risk of Harassment by Law Enforcement to Mexican Citizens
III. SB 1070 Dangerously Leads to a Patchwork of Laws that Impede Effective and Consistent Diplomatic Relations

It seems to me eminently legitimate for countries to defend their own interests and the interests of their citizens when those interests are affected by the actions of foreign countries, by lawfully appealing to those foreign countries’ governments (whether the judiciary branch, the legislative branch, or the executive branch). I would hope that the U.S. takes steps to protect the interests of America and Americans in documents filed with the Mexican government. I likewise see nothing wrong with Mexico taking similar steps (again, lawful, orderly steps) to protect the interests of Mexicans in documents filed with the American government.

For instance, SB 1070, whether right or wrong, and federally preempted or unpreempted, does affect the interests not just of Mexicans who are illegally in the U.S. but also Mexicans who are legally in the U.S. (Investigation of suspected illegal aliens will inevitably lead to some burden even on legal aliens, since not every suspected illegal alien will prove to actually be an illegal alien — that doesn’t mean SB 1070 is a bad law, but it does mean that Mexico has an interest in the law even as to its entirely law-abiding citizens, and not just its citizens who are violating U.S. immigration law.) Why shouldn’t Mexico advocate on its citizens’ behalf? And why shouldn’t our institutions listen politely to such advocacy?

Nor is there something odd about the Ninth Circuit allowing the filing of the briefs, or the federal government agreeing to the filing. As best I can tell, what happened in this case is this: A bunch of groups asked for leave to file amicus briefs. The Federal Rules of Appellate Procedure generally require prospective amici to get consent from the parties, or leave from the court. As best I can tell, the Ninth Circuit generally freely grants leave to file amicus briefs, and the federal government generally consents. The foreign governments asked both parties for consent; the federal government said yes, the state said no, and the Ninth Circuit (again, in keeping with its normal practice) let them file. At the same time, the Ninth Circuit accepted briefs from a bunch of other groups, too:

Filed clerk order (Deputy Clerk:WL): The following entities, individuals, and governments have filed Motions for leave to file an Amicus brief: (1) The United Mexican States; (2) Legal Momentum; (3) Arizona Cities of Flagstaff, Tolleson, San Luis, and Somerton; (4) City of Tucson; (5) The County of Santa Clara, California; (6) Anti-Defamation League; (7) Friendly House Plaintiffs; (8) League of United Latin American Citizens, National Coalition of Latino Clergy and Christian Leaders, Chicanos Por La Causa, Inc., Magdalena Schwartz, Joseph David Sandoval, and David Salgado; (9) National Council of La Raza, United States Hispanic Chamber of Commerce, The Hispanic National Bar Association And Los Abogados Hispanic Bar Association; and (10) American Immigration Lawyers Association. The following governments have moved for leave to join the Amicus brief of The United Mexican States: Argentina, Bolivia, Brazil, Costa Rica, Ecuador, El Salvador, Nicaragua, Paraguay, Peru, and Chile. All of the Motions are GRANTED and the clerk shall file the Amicus briefs submitted by these parties. [7495148] (WL)

No favoritism, as best I can tell, being shown to the federal governments; they are just being allowed to express their views much as other groups are routinely allowed to express their views. The court will consider the legal arguments being made by the parties and the amici, and rule accordingly. Maybe it will rule soundly and maybe it will rule unsoundly. But I don’t see anything sinister about its considering the views of foreign governments alongside the views of other amici in making its decision.

The Volokh Conspiracy