But this is precisely the fear.
It is not beneath the 9th Circuit to pull some stunt that would muddy the waters and give Arizona a clouded decision, leaving it in some legal netherworld.
That way they would achieve their goal of neutering the law and furthering the invasion. Perhaps you think that conclusionary, but I have lived through the willful nullification of Proposition 187 - approved by the votes of 6 MILLION people, nullified by a handful of deranged Leftists in the Federal District court and the 9th Circuit - and nothing could have been clearer while they were doing it: they believe that there should be no impediment to the migration of any Mexican north of the putative "border".
The more hands something passes through, the less it looks like what it was when it started.
Your position is that this is a good thing because it will be stripped to its legal essentials - an understandable argument, that a strict filter should be applied so that trivial considerations are gone by the time it arrives in Justice Robert's chambers.
But look at what Bolton has already done: the case was originally filed because Holder claimed possible damage to non-whites who would be harassed without cause. She said nothing about this supposed reason for the entire case, and instead meandered off into emotional hand wringing about inconveniencing certain classes of legal immigrants.
This is a necessary filter? For something of this significance?
At the very least, it appears to me that 1251 (b) is being abused here in an attempt to do just what I said: muddy the waters, lard up the suit with extranea and tangential concerns, weigh it down until it sinks in multiple side arguments which never get clarified up or down.
It really should have gone straight to the high court.
A parenthetical note: it's not clear to me that the lawyers for Arizona are the best guys for the job. Conservatives tend to be straight forward thinkers, they don't see the sleaze games coming at them - call it a lack of criminal tendencies. But that isn't true of a bunch of backstreet thugs like the ones that hang around the Democratic Party (Greg Craig and Erskine Bowles come to mind...). This is another reason I'm not so sure about getting to SCOTUS with the questions intact. The derailment effort is now in full swing, and they won Round 1. Recall that everyone thought there would be no grounds for Bolton to stay the law. But she took the hints from the government, and stuck it to Arizona.
I have every reason to believe that effort will continue, especially with the 9th bleating that they "just don't have time until November". BS. Intentional foot dragging.
The issues, the precedents and the arguments will be more fully flushed out by the time it reaches the Supreme Court as a result of the brief-writing and opinion-writing and argument before two lower courts.
For example, one of the points of argument that have emerged even since the District Court decision is that since the Supreme Court has ruled that foreign nationals who are detained by police have a right to speak to their consulate, that it necessarily implies that police must have the power to ascertain what the nationality of a detained person is in order to sustain this right.
My own personal opinion is that we are going to win 5-4 at the Supreme Court level. But I would rather see the case go through the lower levels first because I frankly don’t trust the clerks at the Supreme Court to get all the research and issues right if the entire burden of prepping the case was on them.
I think, or at least hope, that the important principle the Supreme Court will establish in this case is that for purposes of preemption the federal government’s position consists of statutes passed by Congress and regulations pursuant to duly delegated authority, and that a mere policy by the Executive Branch not to enforce Congress’s laws does not itself constitute the federal government speaking on an issue for purposes of preemption.
In the meantime, Arizona police are free to ask detained persons about their immigration status. They cannot be required to do so under the preliminary injunction, but they are allowed to do so and I would expect most of them will continue to do so while this case makes its way up.