And while the lawsuit does argue against a patchwork of state immigration laws Mr. Obama has fretted over, the idea that legal residents and citizens might find themselves swept up in Arizona's enforcement, which is intended to discourage illegal immigrants from coming and prompt those here to leave, is not a central argument.
In this case it is clear the administration's arguments in the court of public opinion took a backseat to those expected in the actual courtroom.
Justice Department officials and legal experts say the government, political consequences aside, faced up to cold legal practicalities. Racial profiling claims are difficult enough to prove, let alone before a law takes effect, and there are no examples that prosecutors can point to of legal citizens whose lives were disrupted by the Arizona law because they looked like an illegal immigrant to a police officer.
Dennis Burke, the United States attorney here, said in an interview that focusing the case on “pre-emption,” the legal doctrine based on the Constitution's supremacy clause that elevates federal law over states', was the surest route to suspending the law before it goes into effect July 29. The federal government has successfully used the pre-emption argument in several cases, but this would be the biggest test in an immigration case.
“The supremacy clause and a pre-emption argument require no waiting for the law to be actually in implementation,” Mr. Burke said. “It doesn't allow the defense to say, ‘They are in here too early, judge, this should be allowed to play out for a while.' “
The Arizona law, known as SB 1070, requires police officers to check the papers of people they stop or arrest if suspicious of their immigration status and makes it a state crime to be in the country without authorization.
The Justice Department did argue in its suit that the law “will cause the detention and harassment of authorized visitors, immigrants, and citizens who do not have or carry identification documents specified by the statute, or who otherwise will be swept into the ambit of S.B. 1070's ‘attrition through enforcement' approach.”
But people on both sides of the debate concede racial profiling is not what the Justice Department case, the biggest gun in the legal fight, is about.
To supporters of the law, this is validation of their claims that the law, which includes language forbidding profiling, is not discriminatory.
“It's nice to see the Obama administration finally concede there is no allowance for racial profiling in Arizona's immigration law,” said Kirk Adams, the Republican speaker of the Arizona House of Representatives. “After all the sound and fury about discrimination, it's now clear that the administration's entire case against SB 1070 rests on a technical claim that the law is indirectly pre-empted by federal immigration law.”
United States Representative Trent Franks, an Arizona Republican, said Mr. Obama's discrimination worries are “glaringly absent from his lawsuit.”
“It is beyond ironic,” Mr. Franks added, “that the main claim in the lawsuit is that Arizona is wrongly pre-empting a federal responsibility when the entire reason the legislation was necessary in the first place was precisely because the federal government was simply not living up to its responsibility.”
And it turns out Kris Kobach , the University of Missouri law professor who wrote the bill for legislators here, had accurately predicted the government's stronger case would rest over who has authority over immigration law and not concerns about racial profiling.
Lawyers in the other five lawsuits against the law that play up the potential for discrimination shrugged off their opponents' glee, saying the government shrewdly chose not to “throw the kitchen sink” at the state, as Thomas A. Saenz of the Mexican American Legal Defense and Educational Fund put it.
They were happy the government stepped in and did so forcefully, even raising arguments, like the potential effect on diplomatic affairs, that others had not emphasized.
“I am overwhelmed by their case,” said Stephen Montoya, the lawyer for a Phoenix police officer who has sued, in part, on the basis that he would be forced to consider people's race or ethnicity to enforce the law.
He and others said they had played up the possibility of racial profiling because, unlike the federal government, they represent clients who might be affected by the law and its repercussions.
Above all, they said, they will take anything that stops the law, even if it does not turn on what all the fuss has been about.
“To me it's clear the Justice Department's goal is to stop the law from going into effect and prevent the harassment and racial profiling from occurring,” said Lucas Guttentag, a lawyer for the American Civil Liberties Union .
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From the Los Angeles Times
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U.S. case against Arizona law
The suit is an assertion of federal authority, on solid grounds, but there still is a need for a sound immigration control policy.
OPINION
July 8, 2010
In filing its long-awaited suit to block implementation of Arizona's harsh new immigration law, the Justice Department has taken a necessary step to reassert federal authority over immigration enforcement. The Obama administration rightly argues that states cannot be permitted to concoct their own rules and regulations on this issue to suit local needs and local politics, no matter how frustrated they are with the federal government. Allowing states to do so would result in a mishmash of laws handicapping Washington's ability to do its job.
Arizona officials have argued that the state is merely seeking to enforce federal law. But that's not quite right. The new Arizona law, scheduled to take effect July 29, makes it a crime for undocumented immigrants to be in Arizona and requires noncitizens who are in the country legally to carry registration papers with them at all times. It also requires police to check the immigration status of people who are stopped for other reasons if they are "reasonably suspected" of being in the country illegally. But, as the administration notes, being an illegal immigrant is not a federal crime: "Congress has affirmatively decided that unlawful presence — standing alone — should not subject an alien to criminal penalties and incarceration." Deportation by the U.S. government, yes; arrest by civil authorities, no.
Furthermore, the United States does not have the wherewithal to deport 11 million people. So federal policy prioritizes the capture, prosecution and deportation of illegal immigrants who threaten national security or who are dangerous or criminal. Arizona's law could force the U.S. government to redirect its efforts to processing untold numbers of illegal immigrants discovered by the police for, say, driving with a broken tail light or jaywalking. What's more, thousands of immigrants are legally present in the U.S. but do not possess federal registration papers, such as those who have applied for asylum, or are applying for special visas as victims of trafficking or a violent crime. Arresting them would violate federal policy.
Immigration foes don't believe the government has any interest in halting illegal immigration, and have responded to U.S. policy with simplistic slogans such as "What part of illegal don't you understand?" and "Illegal is a crime." But in fact, the situation isn't simple at all. Consider, for example, our relationship with Mexico. As the suit points out, migration flow cannot easily be teased out from the web of interconnecting political, socioeconomic and diplomatic concerns. Trade between the two countries averages $1 billion a day; Mexico is the third-largest supplier of oil to the U.S., and together we combat drug and human trafficking. How we handle immigration will affect these and other issues and is therefore best handled by the federal government.
Admittedly, there is a disconnect between the government's bold assertions of federal authority in the complaint and its contradictory, often confusing policy. For example, the government doesn't just deport criminals, or even mostly criminals. In reality, it apprehends and deports thousands of ordinary people, just as Arizona is threatening to do. Given such inconsistencies, it is understandable that, increasingly, states are growing frustrated and taking matters into their own legislatures. On Tuesday, the government made a clear case for control of immigration policy; now it needs to actually implement one.
http://www.latimes.com/news/opinion/editorials/la-ed-arizona-20100708,0,23216,print.story |
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From the New York Times
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The Constitution Trumps Arizona
OPINION
The Obama administration has not always been completely clear about its immigration agenda, but it was forthright Tuesday when it challenged the pernicious Arizona law that allows the police to question the immigration status of people they detain for local violations. Only the federal government can set or enforce immigration policy, the government said in its lawsuit against the state, and “Arizona has crossed this constitutional line.”
There is nothing terribly complicated about this principle, which is based on several aspects of the Constitution, acts of Congress, and Supreme Court decisions over the years. A patchwork of state and local immigration policies would cause havoc.
As the Justice Department points out in its complaint , the Arizona law will divert resources from the government's pursuit of dangerous aliens, including terrorists, spies and violent criminals. It will harass authorized immigrants, visitors and citizens who might not be carrying their papers when stopped by the police. It will ignore the country's cherished protections of asylum and will interfere with national foreign policy interests. (Already several Mexican governors are refusing to meet with their American counterparts in Arizona, a sign of the diplomatic disarray produced by the law.)
The courts have repeatedly made these fundamental ideas clear. A federal court in 1997 struck down Proposition 187 in California, which would have denied social benefits to illegal immigrants and turned state employees into enforcement agents because it was pre-empted by federal authority. (Appeals in the case were dropped.) The Supreme Court has said federal authority can pre-empt state law when the federal interest is dominant and where there already exists a system of federal regulations. The government has done a poor job enforcing its immigration rules, to say the least, but they do exist, and clearly fall under what the Constitution calls “ the supreme law of the land. ”
Though private lawsuits have done so, the government's suit does not allege any discrimination or civil rights violations in the law, in part because that case is difficult to make until the law goes into effect on July 29.
The current Supreme Court, fortunately, has not been as active in recognizing state power as was the Rehnquist court, but it is not always easy to predict its direction on a volatile issue like this one. Should the case reach the court, those justices with a constructionist bent might take note of Justice Hugo Black's words from 1941 , quoted by the Justice Department on Tuesday in support of its lawsuit: “The supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution, was pointed out by authors of The Federalist in 1787, and has since been given continuous recognition by this Court.”
The court has already taken a related Arizona case for its next term. It challenges a 2007 law penalizing employers who knowingly hire illegal immigrants. The administration has urged the court to strike down that law for many of the same reasons it cited on Tuesday, and we hope the court uses that case to undermine the notion that states can set their own immigration policy.
In the meantime, there are steps President Obama can take. He can deny Arizona access to federal databases of immigration status and refuse to allow the Immigration and Customs Enforcement agency to cooperate with state officials in handling people detained under the law. The government should end the misguided program allowing local deputies to enforce immigration law after taking an educational course.
Most important, the president can follow through on his recent promise to end the chaos of the immigration system with a comprehensive reform bill. Stamping out unjust laws like Arizona's is a good place to start.
http://www.nytimes.com/2010/07/08/opinion/08thu1.html?ref=opinion&pagewanted=print |
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