On April 11,  2011, in a 2-1 decision, a three judge panel of the US Court of Appeals for the 9th Circuit upheld the District Court's grant of a preliminary injunction against enforcement of Arizona's draconian immigration law, S.B. 1070. The majority opinion, by Judge Richard A. Paez, held: "By imposing mandatory obligations on state and local officers, Arizona interferes with the federal government's authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed DSH agents. As a result, Section 2B interferes with Congress' delegation of discretion to the Executive branch in enforcing the INA."


Nothing could be clearer than this on the subject of Arizona's attempt to usurp federal power over immigration enforcement. However, the dissent, by Judge Carlos T. Bea, tried to get around the federal pre-emption doctrine by giving an expanded and distorted meaning to the single word, "cooperate", in INA Section 1357(g)(10). This section, unlike Section 1357 (g) (1)-(9), does not require an agreement by state officers with the "Attorney General" [DHS] in order for state officers to participate in immigration enforcement. Instead, it gives state officers the power "to cooperate with the Attorney General" in certain aspects of immigration law enforcement, even absent an agreement with the federal government.


Despite Judge Bea's attempt to twist the meaning of the word "cooperate" by using a very broad dictionary definintion, completely disregarding the context of the above statutory provisions, that would let Arizona do almost anything it wants under the pretext that is "cooperating" with the federal government,  it is clear that nothing in the INA gives the states the power to determine their own immigration enforcement policies or priorities.


However, Judge Bea's opinion may pave the way for a possible attempt by the radical right bloc in the US Supreme Court to overturn federal pre-emption in immigration enforcement entirely and to give the states free rein in passing whatever punitive anti-immigrant measures they want. One single misinterpreted word or phrase can make a great deal of difference. Take, for example, the phrase "bear arms" in the recent Supreme Court decision invalidating gun control legislation in the District of Columbia. In that decision, the Court found that " bear arms" means the power of individuals to keep weapons in their homes for their own private purposes.


This extremely broad definition, which is now the law of the land, would have no doubt surprised Julius Caesar, one of the greatest military commanders of all time.  In Caesar's Gallic War he writes that in the camp of his enemies, the Helvetii, there were records of the number of men who were "able to bear arms" ("qui arma ferre possent"). The obvious meaning was to bear arms for the purpose of joining an army or militia, not for private purposes. 


 Another verbal distortion by right wing ideologues which we have certainly not heard the last of, and one which may touch off a tsunami in America's immigration landscape, is the meaning of the phrase "subject to the jurisdiction" in the 14th Amendment's grant of birthright US citizenship. Anti-immigrant advocates who want to narrow the Constitutional protection of birthright citizenship for US born children to the vanishing point are trying to equate the term "jurisdiction" with "allegiance" to the US, a completely different concept.


But "jurisdiction" comes from the Latin juris , the genetive case of ius, "law" and dictio, from the infinitive dicere, "to state". In other words, jusrisdiction simply means the power to say what the law is. In ancient Rome, this power was exercised by magistrates and other legal officers over both Roman citizens and non-citizens alike. "Jurisdiction" has nothing to do with allegiance.  By confusing jurisdiction of the United States with questions of their parents' citizenship, immigration status and allegiance, immigration opponents are hoping to render millions of American-born children of foreign born parents stateless or illegal from the moment of birth.


For the moment, the 9th Circuit dissenting judge's attempt to overturn established law, namely federal pre-emption over immigration enforcement, by distorting the meaning of an isolated word or phrase has not succeeded. But we need to be on guard for more such attempts as Arizona's immigration law moves toward its inevitable rendez-vous with the US Supreme Court.