Arizona accused of seeking to pre-empt, 'second-guess' federal policies

US suit jacks up drama over immigration law

Howard Fischer Capitol Media Services and Brady McCombs Arizona Daily Star |
Posted: Wednesday, July 7, 2010 12:00 am

The federal government's lawsuit against the immigration enforcement law in Arizona magnified the divisiveness of SB 1070 and sets the stage for a milestone ruling that could resonate across the country.

The Obama administration's lawsuit Tuesday comes weeks before the law is to take effect and seeks to prevent other states from duplicating the measure.

SB 1070 "is pre-empted by federal law and therefore violates the Supremacy Clause of the United States Constitution," legal papers filed Tuesday in U.S. District Court in Phoenix contend. The lawsuit says the legislation conflicts with the federal government's need to balance the competing interests of enforcing federal immigration law with the country's diplomatic relations with other nations, including Mexico.

The law "attempts to second-guess federal policies and re-order federal priorities in the area of immigration enforcement and to directly regulate immigration and the condition of an alien's entry and presence in the United States despite the fact that those subjects are federal domains and do not involve any legitimate state interest," wrote Assistant Attorney General Tony West, who heads the civil division of the Department of Justice.

Five other lawsuits have been filed challenging the law, but none carries the weight of the suit filed Tuesday in U.S. District Court in Phoenix by the Department of Justice. The case will now be assigned to a judge who will decide whether to grant a preliminary injunction to temporarily block the law from taking effect on July 29 as scheduled.

While Gov. Jan Brewer and other supporters of the measure defend its constitutionality, one of Arizona's leading legal scholars is predicting the lawsuit will be enough to deliver a knockout blow to the law.

"There's a very realistic chance that this marks the end of SB 1070," said Gabriel "Jack" Chin, of the University of Arizona's James E. Rogers College of Law. "It's one thing for the ACLU and MALDEF to say that SB 1070 interferes with federal immigration authority, but it's not their direct concern. It's much more credible, much more powerful to have the United States come in and make the argument."

Chin predicts a judge will order an injunction and goes further to say the law will never go into effect.

"In order for Arizona to win, Arizona has to persuade a district judge that either Arizona or federal courts are in a better position to determine foreign policy concerns than the secretary of state and the federal government," said Chin, who has been reading statutes for 25 years. "And that's a tall order."

Pinal County Attorney James Walsh stopped short of predicting an outcome but said he also has serious doubts about the state law's constitutionality. He welcomed the lawsuit because it will provide a sorely-needed answer. Walsh said he believes a court could make a decision before the end of the month.

The federal filing may be stronger than the other five lawsuits pending, said Walsh, because none of the plaintiffs in those other claims may have legal standing or ability to show any specific harm on the issue of federal supremacy, something the federal government is not required to prove.

The law requires police to question those they have stopped for some other reason about their immigration status if there is "reasonable suspicion" they are in this country illegally. It also imposes criminal penalties on foreigners who fail to federally register or carry their immigration documents.

Other provisions make it a state crime for undocumented workers to seek employment in Arizona and for people to knowingly harbor or transport those who are illegal immigrants.

The Arizona Legislature passed the measure after years of frustration stemming from being ground zero for illegal immigration and drug smuggling. Arizona's section of U.S.-Mexico border accounts for nearly half of all illegal immigrants apprehended and marijuana seized in the U.S. There are an estimated 460,000 illegal immigrants living in the state.

Other states have said they want to take similar action - a scenario the government cited as a reason for bringing the lawsuit.

"The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country," the suit says.

The lawsuit has only one purpose, said Sen. Russell Pearce, the Mesa Republican who crafted the law and pushed it through the Legislature. "This is about the Obamas' policy of nonenforcement," he said. "This interferes with their plan for amnesty."

The administration has no interest in dealing with illegal immigration itself and now wants to block Arizona from doing what the federal government refuses to do, Pearce said.

"They are complicit," Pearce said of the administration.

"They are aiding and abetting the enemy," Pearce said and are violating their oath of office. "They ought to be impeached."

Gov. Jan Brewer, in a prepared response, said she believes the law is "both reasonable and constitutional."

Brewer also rejected the contention that SB 1070 is preempted by federal law, saying it is "designed to complement, not supplant, enforcement of federal immigration laws."

"As a direct result of failed and inconsistent federal enforcement, Arizona is under attack from violent Mexican drug and immigrant smuggling cartels. Now, Arizona is under attack in federal court from President Obama and his Department of Justice," Brewer said. "Today's filing is nothing more than a massive waste of taxpayer funds."

Brewer said she was glad the federal lawsuit did not claim the law will lead to racial profiling, a claim in some of the five other lawsuits already filed challenging the law.

But that may be just a temporary victory: A top Justice Department official said Tuesday that racial profiling is a separate legal issue. He said that if SB 1070 does take effect as scheduled on July 29, his agency's civil-rights division will monitor how the law is implemented and, if necessary, file a separate action.

Kris Kobach, the University of Missouri-Kansas City law professor who helped draft the Arizona law, said he's not surprised by the Justice Department's challenge and called it "unnecessary."

He noted that the law already is being challenged by the American Civil Liberties Union and other groups opposed to the new statute.

"The issue was already teed up in the courts. There's no reason for the Justice Department to get involved. The Justice Department doesn't add anything by bringing their own lawsuit," Kobach said in an interview.

Central to the case is whether the Arizona law interferes with what West said is the need of the federal government to decide exactly how and when to enforce immigration laws.

"Assuring effective enforcement of the provisions against illegal immigration and unlawful presence is a highly important interest," wrote West, the assistant U.S. attorney general. "But it is not the singular goal of federal immigration laws."

West said the laws also take into account "uniquely national interests" like facilitating trade and commerce, welcoming foreign nationals who visit, and making sure the treatment of foreign nationals here "does not harm our foreign relations with the countries from which they come or jeopardize the treatment of U.S. citizens abroad."

Pearce said SB 1070 simply lets the state enforce existing federal immigration laws. But West said that's not the case.

For example, he said federal law does make it illegal to hire an undocumented worker. And there are separate laws aimed at would-be workers who present presenting fraudulent documents.

But nothing in any of those laws, West said, makes it a crime for an illegal immigrant to seek work.

"In fact (Congress) decided that criminal sanctions for seeking or obtaining employment would run counter to the purposes of the immigration system," he wrote.

Pearce said West is off-base with his objections.

"It's a felony to hire them," Pearce said. "So it ought to be a crime to solicit."

West had similar problems with the requirement of police to check the immigration status of those they suspect are in this country illegally. At the same time, SB 1070 also says any legal Arizona resident can file suit against any official or agency that adopts or implements a policy that restricts enforcement of federal immigration laws.

He said that undermines what had been the discretion of police of whether to verify someone's immigration status. Nor was West convinced that the requirement for "reasonable suspicion" is sufficient to protect rights.

"Arizona's alien inspection scheme therefore will subject lawful aliens to the possibility of inquisitorial practices and police surveillance, a form of treatment which Congress has plainly guarded against in crafting a balanced, federally directed immigration enforcement scheme."

Both Brewer and Pearce also chided the Obama administration for what they see as a selective approach to claiming federal supremacy in enforcing immigration laws. Pearce said that ignores various local policies and practices that now instruct police not to inquire about someone's immigration status.

"These patchwork local 'sanctuary' policies instruct the police not to cooperate with federal immigration officials," Brewer said.

In a prepared statement, Attorney General Eric Holder said Arizonans "are understandably frustrated with illegal immigration." And he said the federal government has a responsibility to comprehensively address those concerns. "But diverting federal resources away from dangerous aliens such as terrorism suspects and aliens with criminal records will impact the entire country's safety," the statement said.

"Setting immigration policy and enforcing immigration laws is a national responsibility," Holder continued. "Seeking to address the issue through a patchwork of state laws will only create more problems than it solves." ... cbd82.html