Let Arizona carry out its immigration laws

Washington Post - Letter to the Editor

Saturday, July 10, 2010

The July 7 editorial "Suing Arizona" included the same flaw as the federal lawsuit it supported: It confused the constitutional "preemption" standard for laws targeting legal immigration with those targeting illegal immigrants. Justice William J. Brennan Jr. led the Supreme Court in three cases in the 1970s and 1980s (and still good law today) that established a lower "rational basis" standard for state laws against illegal immigration.

The Supreme Court does not presume that Congress intended to preempt state illegal immigration laws that are consistent with federal laws. To preempt a consistent state law, Congress must say so expressly. Despite all the verbiage in the Arizona lawsuits, no one can point to Congress having "clearly and manifestly" done so. Instead it's all policy preferences better addressed by Congress, not the courts.

And about that frustration that the federal government hasn't done its job? In a 1976 case upholding California's right to penalize employers of illegal immigrants when the federal government didn't, Justice Brennan wrote that it was the state's "right" to enforce its own laws when the federal government was not "protecting the entire country." The collapse of federal immigration law enforcement inside the borders is not a reason for preempting state laws; it's a reason states can act when the federal government does not.

Barnaby Zall, Rockville

The writer has represented Arizona laws in several lawsuits, including the current litigation discussed in the editorial.

http://www.washingtonpost.com/wp-dyn/co ... 05475.html