Feds file suit to stop Arizona immigrant law

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by JJ Hensley, Alia Rau and Craig Harris
Jul. 6, 2010 03:28 PM
The Arizona Republic

The Obama administration filed suit today against Arizona's landmark immigration law, alleging it was unconstitutional and a U.S. District Court judge should keep it from going into effect July 29.

The suit, filed in Phoenix, claims Arizona's new law "will conflict and undermine the federal government's careful balance of immigration enforcement priorities and objectives," and divert resources from the "dangerous aliens who the federal government targets as its top enforcement priority."

The lawsuit, expected for weeks, seeks a court injunction to prevent the state from enforcing the law and asks a court to find certain sections of the legislation null and void. Senior Justice Department officials said they expect a federal judge to take up the motion for an injunction as early as next week.

The case has been assigned to Judge Neil Wake, but no hearing was scheduled as of mid-afternoon. The lawsuit alleges the Arizona law violates the U.S. Constitution's Supremacy Clause, which says the federal law trumps any conflicting or inconsistent state law.

The federal action joins a handful of other lawsuits seeking to prevent the law from going into effect.

U.S. District Court Judge Susan Bolton has set hearings for July 15 and 22 for legal challenges already filed. Justice Department officials said they were going to file a motion to transfer the federal government's case to Bolton.

Gov. Jan Brewer, who is named as a defendant along with the state, called the lawsuit "a terribly bad decision."

"It is wrong that our own federal government is suing the people of Arizona for helping to enforce federal immigration law. As a direct result of failed and inconsistent federal enforcement, Arizona is under attack from violent Mexican drug and immigrant smuggling cartels," Brewer said in a written statement. "Now, Arizona is under attack in federal court from President Obama and his Department of Justice. Today's filing is nothing more than a massive waste of taxpayer funds."

Senate Bill 1070 makes it a state crime to be in the country illegally. It states that an officer engaged in a lawful stop, detention or arrest shall, when practicable, ask about a person's legal status when reasonable suspicion exists that the person is in the U.S. illegally.

Arizona's U.S. Attorney Dennis Burke maintained the immigration law is unconstitutional.

"The frustration is legitimate, but that doesn't make the law legitimate," Burke said. "The (Justice) department has an obligation to defend the Constitution. There's no question that (SB 1070) is unfunded, and it's clearly unworkable. But the most important thing is that it's unconstitutional."

Arizona State University law professor and constitutional-law expert Paul Bender agreed.

Bender said SB 1070 violates federal authority to oversee immigration enforcement, and a Department of Justice lawsuit would be quite convincing to a judge.

"They are the ones who apply federal immigration law," Bender said. "If they take the position that Arizona law interferes with the operation of federal immigration, I would think that should be very persuasive with the judge."

Bender said lawsuits filed against state and local governments by the federal government are not unusual but are more common in cases of civil rights issues than immigration. The U.S. Supreme Court, at the request of the U.S. solicitor general, last month agreed to hear arguments on the constitutionality of Arizona's 2007 law that penalizes employers for hiring illegal immigrants. That law has been upheld in U.S. District Court and the 9th U.S. Circuit Court of Appeals.

Word of Tuesday's lawsuit brought out politicians and activists to condemn and praise the federal government's action.

Sen. Russell Pearce, R-Mesa, the sponsor of SB 1070, called the federal lawsuit "patently insulting." He said states have the inherent authority to enforce federal law and questioned why the federal government doesn't sue cities with policies that restrict the enforcement of federal immigration laws.

"It's outrageous," he said. "It is simply Washington putting their policy on the backs of this lawsuit trying to prevent the enforcement of our laws and continue their non-enforcement policy."

Rep. John Kavanagh, R-Fountain Hills, co-sponsored SB 1070, said he wasn't surprised by the federal action. But he was taken aback by the Department of Justice's legal argument.

"The Supremacy Clause argument requires proof that we are pre-empting either the U.S. Constitution or federal law, and we are not," Kavanagh said. "What we are pre-empting is not the law but the Obama administration policy of not adequately enforcing immigration law."

He called the federal lawsuit weak, nonsensical and one more distraction from the fight against illegal immigration.

"This is not a legal challenge but a political one," he said. "If I were the Obama administration faced with a poor economy, failed stimulus and oil leaking through the gulf, then I, too, would be trying to distract voters from all of the failures of my administration with a frivolous lawsuit."

A host of Democrats lauded the federal government's move.

Maricopa County Supervisor Mary Rose Wilcox said the lawsuit was necessary "because only the Department of Justice has the legal ability to protect the interests of the United States."

Wilcox said the state's sense of frustration over illegal immigration does not give Arizona the right to violate the Constitution, and she argued that SB 1070 actually detracts from local and federal efforts to fight problems such as drug cartels and human smuggling.

Warren Stewart, pastor of the First Institutional Baptist Church in Phoenix, agreed.

"Fifty years ago at the height of the civil-rights movement when state legislatures passed legislation that was discriminatory … bigoted … it took the federal government to step in," he said. "Here we are again. But we did it then and now we thank God the federal government is on our side with SB 1070."

"Not only is this monumental from the legal perspective, but this is a critical day in the history of our nation," attorney Antonio Bustamante said.

Rep. Kyrsten Sinema, D-Phoenix, said this lawsuit will allow the court to offer some clarity about where the line between state and federal authority should be drawn when it comes to immigration enforcement.

The notion of federal intervention has drawn criticism from members of Arizona's congressional delegation. Rep. Harry Mitchell, D-Ariz., released a statement shortly after the lawsuit was announced saying the federal government was taking the wrong approach to solving the immigration problem.

"This is the wrong direction to go. I urged President Obama and his administration against doing so because I strongly believe their time, efforts and resources should be focused on securing our border and fixing our broken immigration system," Mitchell's statement read. "Arizona needs Washington to take action, but a lawsuit is definitely not the kind of action we need."

But condemnation of the federal government's legal challenge wasn't universal among Arizona's congressional delegation.

Rep. Raúl M. Grijalva, D-Ariz., issued a statement thanking Obama for raising serious issues with the legislation.

"Even the most ardent supporters of SB 1070 should support this crucial test of its legality," Grijalva's statement read. "All elected officials have sworn to uphold the Constitution, and a test of SB 1070's constitutionality is not a left-right issue."

The question of who would defend Arizona in the face of a federal lawsuit was only recently resolved. Last month, Attorney General Terry Goddard removed himself from the legal team that would defend the state in lawsuits challenging SB 1070 following a series of disputes with Brewer.

Brewer and the state are now defended by a private team of attorneys from Phoenix.

Read more: http://www.azcentral.com/news/articles/ ... z0swjVC6mJ



Reaction to federal lawsuit- Slideshow:
http://www.azcentral.com/news/articles/ ... eshow.html

Read the lawsuit http://www.azcentral.com/ic/pdf/0706us- ... awsuit.pdf