Feds sue to stop AZ immigration law

The federal lawsuit against Arizona’s tough new immigration law focuses heavily on a question that has been in the spotlight repeatedly the past decade and dates back to the Founding Fathers: The right of the government to keep states from enacting laws that usurp federal authority.

The lawsuit filed in Phoenix federal court on Tuesday sidestepped concerns about the potential for racial profiling and civil rights violations most often raised by immigration advocates. Experts said those are weaker arguments that don’t belong in a legal challenge brought by the White House to get the measure struck down.

Instead, the suit lays out why the government believes that immigration laws passed by Congress and enforced by a range of federal agencies must take precedence to any passed by a state Legislature.

The Arizona law requires officers, while enforcing other laws, to question a person’s immigration status if there’s a reasonable suspicion that they are here illegally, such as speaking poor English, traveling in an overcrowded vehicle or hanging out in an area where immigrants typically congregate.

The law also makes it a state crime for legal immigrants to not carry their immigration documents.

Backers of the law say the crackdown is a necessary tool to keep illegal immigrants out of Arizona and combat problems such as drug trafficking, murders and violent kidnappings that have become so common in a state that is home to an estimated 460,000 undocumented residents.

The federal government will ask a judge to grant an injunction to block the law from taking effect on July 29.

The arguments will focus on a core constitutional concern — balancing power between the states and the federal government. More specifically, the issue centers on the long-running “pre-emption” legal argument that says federal law trumps state law.

“The nation’s immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests,” the suit says.

The lawsuit goes on to say that a “state may not establish its own immigration policy or enforce state laws in a manner that interferes with the federal immigration laws. The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country.”

Backers of the law say that Arizona will have some strong arguments in its favor in fighting the lawsuit.

Kris Kobach, the University of Missouri-Kansas City law professor who helped draft the Arizona law, has said the state law is only prohibiting conduct already illegal under federal law. And Harvard Law School professor Gerald Neuman believes Arizona could make a compelling legal argument that it has overlapping authority to protect its residents.

But courts have ruled that under the Supremacy Clause of the Constitution, any state law that conflicts with a federal law is pre-empted. Federal law, the framers said, “shall be the supreme law of the land.”

The pre-emption tactic has been successfully used by the federal government on several occasions over the years, including by the Bush administration to limit product liability lawsuits. The government also used it to overturn bans on military recruiters passed by liberal California towns.

Federal courts have invoked the Supremacy Clause on immigration issues as well. For example, a federal judge in 2008 struck down a Dallas suburb’s ordinance that banned apartment rentals to illegal immigrants, saying the U.S. government has the ultimate authority to enforce immigration laws.

Within months of taking office, the Obama White House directed department heads to undertake pre-emption of state law only with full consideration of the legitimate prerogatives of the states. The 2009 directive was aimed at reversing Bush administration policy which had aggressively employed pre-emption in an effort to undermine a wide range of state health, safety and environmental laws.

Despite the precedent, that doesn’t mean the lawsuit is a sure winner, or that state officials don’t believe they can pass laws that head into federal turf.

In fact, efforts by many states trying to block the nation’s new health care law run headlong into the Constitution’s Supremacy Clause. But immigration is one area where federal authority has generally been upheld.

“Immigration has traditionally and constitutionally been the historic preserve of the federal government, and there are cases going back to the late 19th century that say as much,” said Peter Spiro, a constitutional law professor at Temple University who has studied immigration law extensively. “So the Obama Administration has a lot to work with in filing this claim, and the fact that the claim is filed by the administration adds credibility … and increases the chances that law will be struck down on pre-emption grounds.

“That said, it not by any means a slam dunk,” Spiro said.

Regardless of how the case is determined at the district court level, it will likely be appealed. The U.S. Supreme Court is already set to hear an Arizona immigration case in the fall when it takes up a challenge to a 2007 state law punishing employers who knowingly hire illegal immigrants.

If the high court doesn’t issue a broad ruling on states’ rights to implement laws on immigration in that case, prepare to see the case filed Tuesday make to the justices, Spiro said.

“It’s clearly an important case. The Arizona law is unprecedented in its aggressive posture towards illegal immigrants. It’s an important issue federally, really, that’s the way the administration is framing it. They say the states do not have this kind of role as far an immigration legislation.”

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Associated Press Writer Jonathan J. Cooper contributed to this report.

Copyright © 2010 The Associated Press

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20 Responses to "Feds sue to stop AZ immigration law"

  1. Warren  July 7, 2010 at 10:14 pm

    Just a few comments here from an Arizona resident who is somewhat connected to the political scene.

    The intentions of the new Arizona law (SB1070) are quite different from what it says in its text. Let me explain.

    The intentions are simple: Stir things up in Washington to get some meaningful immigration legislation and get the resources allocated to back up whatever the legislations says.

    I believe the intentions are meeting with success, judging by the national media response.

    What the law says in its text is that state and local law enforcement may do the things that federal immigration enforcement should be doing but is not doing.

    The text of the legislation will not be, and was never intended to, be enforced. Here’s why:

    From a law-and-order perspective it makes no sense. The police are for finding criminals and removing them from general society. Police don’t effectively prevent crime except by removing criminals after they’ve committed crimes and before they can commit more. That process requires people to report crimes. People who are here without ‘papers’ will become even more hesitant to report crime for fear of being deported. Thus the crime prevention process gets broken.

    The mayors and chiefs of police of Arizona’s major metropolitan areas have stated point-blank that they will not enforce the law for that reason.

    Our smaller communities won’t be able to enforce the law, either; but for a different reason. They don’t have the resources (talent, payroll) to deal with the serious law enforcement issues that they have already. They certainly will not waste resources chasing illegal immigrants.

    The upshot of all that is that the Arizona law is having its intended effect in Washington while local people without ‘papers’ have little to fear.

    I have quite a bit more to say on this subject but I’ll wait to see if any dialog develops.

    —W—

  2. woody188  July 7, 2010 at 11:24 pm

    Why is our Federal government suing in favor of people that aren’t citizens and breaking the law instead of protecting the citizens that pay their exorbitant salaries?

    This is akin to the Dept. of Labor promoting off-shoring/outsourcing and places the Federal government in direct conflict with the well-being of the citizens they are sworn to protect. It is quite frankly treason since it is the Federal government that is not upholding the law. They are abandoning citizens to protect and defend non-citizens. What else could it be called?

    • Almandine  July 8, 2010 at 11:33 am

      High crimes and misdemeanors.

    • Warren  July 8, 2010 at 11:11 pm

      Yup. That’s the way most US citizens see it. MSNBC has been running a poll on the question “Do you support Arizona?” Last I checked there were nearly two and a half million responses, 96% “Yes”.

      You have to wonder about politicians who are that totally out of sync with the electorate. Of course, we routinely castigate politicians who do nothing but watch the polls and go with whichever side of the issue gets 51%. But 96% ? That’s out of touch.

      And what’s with Obama? He doesn’t recognize political suicide when he sees it? I believe he’s a very politically savvy guy which makes his actions even harder to understand.

      —W—

      • woody188  July 9, 2010 at 2:46 pm

        It becomes pretty clear if you believe they are trying to wipe out national borders and integrate us into one giant North America Bloc in their world order. Crystal clear once you know that truth.

  3. AustinRanter - AKA Gregg  July 7, 2010 at 11:52 pm

    Warren…sounds like a new version of “The Mouse That Roared”

  4. paulb6  July 8, 2010 at 6:19 am

    Could someone explain to me why then a state can not sue the federal government for its deliberate failure to uphold the law. Doesn’t the constitution require the government to protect the states from invasion.

    • Warren  July 8, 2010 at 11:30 pm

      It’s the 11th Amendment, ratified in 1795. It says:

      “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

      The courts have subsequently extended the meaning outside of the original words, to mean that individuals cannot sue any state and no state or person can sue the federal government. There are a few minor exceptions, but that’s basically it.

      —W—

      • guardhouse lawyer  July 9, 2010 at 8:37 am

        Perhaps you should go back and review civics 101, particularly with respect to your last sentence.

        This amendment does not say that. It explicitly grants sovereign immunity to the states, which is a common underpinning of the law pretty much everywhere the so-called English system prevails, but the states AND the government have statutorily waived sovereign immunity countless times over the years.

        • Warren  July 9, 2010 at 3:13 pm

          Hi, GL,

          I stand substantially behind my admittedly superficial treatment of the subject. For a short discussion see the article on “Sovereign Immunity in the United States”, on Wikipedia.

          —W—

      • paulb6  July 11, 2010 at 7:02 am

        Thank you Warren, how can this ruling be changed, constitutional ammendment or federal law?

        • Warren  July 11, 2010 at 2:49 pm

          The whole matter of “Sovereign Immunity” seems really nebulous. I’m not a lawyer and I’m not a constitutional scholar, but it seems that clear definitions are hard to come by.

          The principle of “Sovereign Immunity” dates back to the early English kings. The King made the rules and the King decided when they had been violated. The King was supreme.

          When constitutional governments came into being the principle was incorporated. In the U.S. the Constitution is the ultimate law. It invests its power in a Congress and Executive who share the rule-making function and a Supreme Court which is the final decision maker. Thus the federal government makes the rules and the government decides when they have been violated. The federal government is “supreme”.

          There is no way to change what is in the Constitution except by amendment or, by the back door, Supreme Court reinterpretation of its meaning. *

          Could the state of Arizona file suit against the federal government? It could try but it probably wouldn’t get very far.

          The obvious approach would be to sue the federal government for breech of contract under Article IV, Section 4:

          “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

          This seems unlikely to go very far given established precedent.

          There are other avenues. As GL pointed out, there are a few situations where the federal government has waived sovereign immunity. One of them is to allow tort claims against individual federal employees. Thus one can imaging suing Janet Nepalitano in her capacity as head of the HSA for some dollar amount of damages caused by her negligence and dereliction of duty. AZ would have to come up with some demonstrable damages and put a dollar figure on them. Again, I’m not a lawyer.

          Interesting to think about.

          —W—

          * Actually, there’s another really scary way to change the supreme law of the land. That is for the Senate to ratify a treaty with a foreign government. Then that treaty becomes superior to any other U.S. or state law. I shudder at the potential for abuse.

  5. guardhouse lawyer  July 8, 2010 at 7:41 am

    So the South American cattle baron was in town to close $50 million real estate deal. But he made two mistakes. He went for a late-night jog and left his passport in his $2000 a night hotel suite. An hour later he is nabbed by Gomer the cop, who suspects the millionaire of running from a robbery. “He could not speak English and I did not recognize his type of Spanish, so I busted him as an illegal,” explained the cop. And since the guy was speaking Portuguese…..

    That was the end of the real estate deal. Too bad it was put together by a state development agency.

    Implausible scenario?

    Yes, but that’s the s–t that happens when you have a law on the books that was put there for the wrong reasons.

    • woody188  July 8, 2010 at 2:37 pm

      So implausible it couldn’t happen. One call to the hotel would confirm his identity. One call to his entourage of lawyers would confirm his identity. And anyone traveling abroad knows never to leave your passport behind.

      If this scenario happened in Mexico he would be imprisoned as well. Maybe we should just mirror their laws since they are so great?

    • sherry  July 8, 2010 at 3:27 pm

      Reading that post helps me remember why lawyers are so unpopular.
      The fact is, we have laws existing regarding immigration. I can’t imagine for the life of me why we should not enforce the laws and why it is even up for debate.
      Tell you what Guardhouse, why don’t you sponsor to your heart’s content every illegal you see and give them a path to citizenship? Of course you would be financially responsible for housing, medical care, etc.

  6. Bogofree  July 8, 2010 at 6:16 pm

    As far as legal there is the law and there is common sense. Trouble is common sense usually loses out. Remember that first lesson in law school is not if you win or lose or discover the truth but how many hours you can bill.

    Seems this failed administration and the previous failed administration spend incredible resources in Afghanistan and virtually nothing her to stem illegal immigration. Priorities? Race card seems to be instrumental in this debate.

    Why does a state have to do what is being ignored by the feds and then punished?

    I constantly see advocates for what amounts to open borders failing to delineate between legal and illegal. They seem to place it all in one big vat.

    Seems to me you can’t avoid the racial aspect of this issue but to me it appears that a large portion of the Hispanic illegal immigration has no intention of assimilating into the mainstream.

  7. Warren  July 9, 2010 at 12:04 am

    That’s mostly true, the part about not assimilating. The basic reason is that most won’t be here long enough for it to make much difference.

    I found a really interesting statistic a few years ago. The average length of stay of an illegal immigrant in the U.S. is four years. Eighty percent of illegal immigrants return to Mexico within roughly four years of entering the U.S. (Sorry, I don’t remember the source now.)

    I was wandering the quiet, dusty streets of a small village outside of Oaxaca (far south Mexico) a few years ago. I ventured into a cantina to see if I could find a cerveza. I struck up a conversation with the owner, whose English was a good deal better than my Spanish. I asked him where he’d learned it. Sure enough, he’d worked picking potatoes in the U.S. for several years, long enough to earn and save enough to buy his little cantina in his home town.

    The point of that story is that many, probably most, illegal immigrants have no intention of staying in the U.S. very long. Most don’t care about U.S. citizenship. They have their extended families and roots in Mexico.

    In my view we need two things from the federal government. First, we need an immigration program that works; where immigrants can come to the U.S. and work for a period of time. The point of the program is to have temporary immigrants documented and paying taxes into the system commensurately with the community services (police, fire, hospital, …) that they use when they’re here.

    The second thing that’s obviously needed is strengthening of border security to the point that it is more desirable from an immigrants point of view to use the immigration system than it is to try to enter the U.S. illegally.

    Right now we’re not getting either in federal legislation or action.

    —W—

    • Guardhouse lawyer  July 12, 2010 at 3:04 pm

      ‘”First, we need an immigration program that works; where immigrants can come to the U.S. and work for a period of time. ”

      That will accomplish exactly nothing. We have gotten ourselves into a situation where we NEED the cheap stoop labor. Hundreds of thousands if not millions of people who are willing to pick the crops, clean the latrines, etc. So we establish a gastarbeiter system such as they have in Germany. Hundreds of thousands of “guest workers” who do the menial labor because the Germans, just like the Americans, feel that such work is beneath them.

      The gastarbeiters stay in Germany for generations. Literally. Their children are born in Germany and consider themselves German. And suddenly someone comes along and says, “ship them home.” Let me know how that works for you. IT DOES NOT. How can you ship home involuntarily a million people? a million!! Perhaps more.

      Here it’s compounded by the fact that the children born here are US citizens, whether you like it or not. What we are doing is creating an underbelly class, people who are not really citizens anywhere. In tough times like we have right now people micturate and pule that these foreigners are taking away “good old American jobs.” Horses–t. They are doing the work that Americans have heretofore been too f–king proud to do.

      If you kick out all the gastarbeiters you will either starve directly because you have no food on the table because no one would stoop to pick it or you starve to death because the price of the food has grown astronomically because labor costs went way the hell up. Take your choice.

      And what sort of bureaucaracy will you have to have to track all those gastarbeiters? Hundreds of thousands of employees.

      “The second thing that’s obviously needed is strengthening of border security . . ..”

      And just how the hell are we going to pay for that? Even if our porous border were only the Mexican one, that’s still not quite 2000 miles, about 10.4 million feet. If you hired a border guard with a quarter mile beat you would need almost 80,000 guards, three shifts a day, seven days a week. It takes just about 6 people to provide full coverage for a year for each position when you figure in vacations, sick leave, holidays, training days, etc. That comes to about half a million new jobs. At minimum wage you are talking about hmmm $8 billion a year just for the front line grunts. Add at least 50 percent overhead for insurance, employer’s SS taxes, supervision, management, etc. etc.

      And still you have quarter mile coverage for each employee. How many illegals can cross the border on a dark night between two minimum wage employees a quarter mile apart with little fear of interdiction?

      But that’s not going to seal your border. All it’s going to do is change the entry points. Ever heard of Manteo, NC? I was there last week, sipping a beer in the upscale little harbor when a 42 foot sailboat pulled in DIRECT from Nassau. How many illegals could have been on that boat? I chatted up the owner for a while and he said that the coast was so porous he could bring in several thousand people a year with absolutely no fear of capture.

      There are literally tens of thousands of places like Manteo along our water borders. And then of course there’s the Canadian border.

      The solution is obvious, but will be implacably resisted by many Americans. Bite the bullet, Tell all the illegals that they can stay here and apply for citizenship, and manage the situation rather than try to Canute the tide. “Let all men know how empty and worthless is the power of kings, for there is none worthy of the name, but He whom heaven, earth, and sea obey by eternal laws,” concluded Canute when the tide soaked his boots and his robes.

      And it’s the same thing here except the tide is already up to our waists.

      • Guardhouse lawyer  July 12, 2010 at 3:07 pm

        I misplaced a decimal at the start of my example and carried it all the way through. My bad. That’s 8000 people per shift, not 80,000. But the point remains. Unless you have people lined up linked arm in arm you are going to get illegals slipping through.

  8. chuck  July 12, 2010 at 4:56 pm

    So listening to all the news, reading the arguments for and against, and also reading the law…it is one, allowing for law enforcement to utilize racial profiling, using reasonable suspicion to hide behind, SOUNDS reasonable to me. ( note the sarcasms along with bad spelling) Two, allowing states to target any group of people because of race or national origin is flat out wrong. Without the proper checks and balances states could take it in another direction. If this is ratified what’s stopping …hmm I don’t know, GA or AL from passing a law into effect stating its ok for cities to not allow certain racial groups residency because a majority of homeless and or causes for gang and domestic crimes falls on a certain ethnic group. (Using that as a ruff agreement). I agree we have a problem with illegal Immigration, but having any state making its own laws about immigration runs the risk of racial profiling lawsuits which could cause the state millions of dollars in legal fees and does usurp the Federal’s authority in immigration policy rulings. This bill may have merit but should not stand and should not pass

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