Report: Justice Department Moving to Challenge Arizona Law

The Justice Department is reportedly moving toward challenging the Arizona law. If true, it would be a rare case where the United States directly challenges a state law as opposed to waiting to intervene as an amicus. Given the increasing number of cities and citizens planning to challenge the law, there is no paucity of plaintiffs requiring such a challenge. I will be discussing this issue tonight on Countdown.

An early challenge by the Justice Department would indicate that it is not going to wait to create an “as applied” challenge based on actual enforcement. That would make it more likely that the challenge would be based on preemption. That would be a tough challenge in my view. I do not see in the legislative history or language any congressional intent to preempt state laws to block concurrent jurisdiction. That would leave an implied preemption argument under the Supremacy Clause of Article VI.

The Court does not presume such preemption, which would have to be based on an inherent conflicts between federal and state law. Here the state is claiming to be assisting the federal government by rounding up illegal aliens.

In De Canas v. Bica, 424 U.S. 351 (1976), the Court ruled unanimously that California could exercise such concurrent jurisdiction. At issue was section 2805(a), stating that “no employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” In a decision written by liberal icon William Brennan, the Court rejected preemption under the Supremacy Clause, Art. VI, cl. 2, of the U.S. Constitution, by the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq., the comprehensive federal statutory scheme for regulation of immigration and naturalization. This was obviously, however, before the current federal scheme was put into place.

Secretary Napolitano told the Judiciary Committee that the law “will detract from and siphon resources that we need to focus on those in the country illegally who are committing the most serious crimes.” That is not enough of a preemption argument — we do not want to arrest people under the law. It will be hard to argue that arresting federal violators interferes with federal enforcement unless the policy is non-enforcement.

The law is being characterized as a separate or alternative state enforcement system as opposed to a concurrent enforcement scheme. That is far from obvious from the language which was written to track the federal law. Unless preempted, the assumption is that the state can exercise concurrent jurisdiction. As the Court stated in lyer v. Doe, 457 U.S. 202, 228 (1982),

“Although the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State’s economy generally, or the State’s ability to provide some important service. Despite the exclusive federal control of this Nation’s borders, we cannot conclude that the States are without power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.”

This is why I have been more interested in the reasonable suspicion provision. On its face, it is hard to see how that standard could be applied constitutionally except when officers determine status at the time of another criminal violation. The problem is that the strongest challenge to that provision would be based on actual enforcement — which various groups clearly do not want to wait for. Courts may view an effort to challenge the likely application of the reasonable suspicion provision as a demand for an “advisory opinion” — which courts do not render given the requirement of an actual “case or controversy” under Article III.

42 thoughts on “Report: Justice Department Moving to Challenge Arizona Law”

  1. The first time a pretty Swedish co-ed is stopped for a broken tailight, speaks to the officer in broken, heavily accented English and is subsequently found to have overstayed her student visa, is first detained by local authorities and finally turned over to ICE for deportation, there’s going to be hell to pay.

  2. Buddha:

    Pima County Sheriff Clarence Dupnik is one of brightest folks I ‘ve seen on television in a long time. Experienced, articulate, and persuasive, Dupnik clearly articulated the flaws in the law both legally and practically. He was also a pretty fair warm-up band for JT.

    I agree that the law may not be facially unconstitutional given the concept of concurrent jurisdiction to enforce immigration law in De Canas. However, I see it as unconstitutional in application given the impossibility of articulating an objective standard for reasonable suspicion that a person is an undocumented alien. There are simply no factual distinctions available between documented and undocumented aliens unless you resort to racial profiling or the officer’s hunch. This is not a Terry v. Ohio situation in which the police can point to specific and articulable facts to justify a pat-down. And just a pat down, mind you.

    In Terry, the basis for the stop was suspicious activity by Terry and his companion while walking back and forth in front of a store window many times, looking in the window, and then the men discussing what the surveillance revealed among themselves. This was, in the view of the observing officer, classic casing of a business prior to an anticipated robbery. The government could point to specific facts which justified an experienced officer reaching the conclusion that the men in question were planning a robbery and that his life and those of other citizens might be in jeopardy. The pat down was not an invasive search but limited in scope to accomplish the purpose of assessing the threat to the officer’s safety.

    While many civil libertarians decry any stop without probable cause, Terry represented a compromise between no intrusion on the dignity of the person by the State and the State’s interest in protecting the safety of the officer in the face of the reasonable suspicion of harm or criminal activity.

  3. At least on cop in Arizona gets it.

    Pima County Sheriff Clarence Dupnik “called the law “racist” and “disgusting” and “stupid” and, in his “nuanced judgment” could not be enforced without mandatory racial profiling. Dupnik’s reckoning of the legal issue is that he’s just as likely to be sued for racial profiling as he is for not doing enough racial profiling, so he’s standing pat, and will not enforce the new law.”


    Good on you Sheriff Dupnik.

  4. How is it possible for you to get on a plane? Could not a terrorist get a drivers license?

  5. There is no better place I could think of to ask this question and does it have any effect on what is going on in Arizona now:


    U.S. Supreme Court
    United States v. Brignoni-Ponce, 422 U.S. 873 (1975)
    United States v. Brignoni-Ponce

    No. 74-114

    Argued February 18, 1975

    Decided June 30, 1975

    422 U.S. 873


    The Fourth Amendment held not to allow a roving patrol of the Border Patrol to stop a vehicle near the Mexican border and question its occupants about their citizenship and immigration status, when the only ground for suspicion is that the occupants appear to be of Mexican ancestry. Except at the border and its functional equivalents, patrolling officers may stop vehicles only if they are aware of specific articulable facts, together with rational inferences therefrom, reasonably warranting suspicion that the vehicles contain aliens who may be illegally in the country. Pp. 422 U. S. 878-887.

    (a) Because of the important governmental interest in preventing the illegal entry of aliens at the border, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border, an officer whose observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country may stop the car briefly, question the driver and passengers about their citizenship and immigration status, and ask them to explain suspicious circumstances; but any further detention or search must be based on consent or probable cause. Pp. 422 U. S. 878-882.

    (b) To allow roving patrols the broad and unlimited discretion urged by the Government to stop all vehicles in the border area without any reason to suspect that they have violated any law, would not be “reasonable” under the Fourth Amendment. Pp. 422 U. S. 882-883.

  6. Making it EASIER to immigrate is the appropriate response – not this poorly written law that will be arbitrarily enforced inviting abuse by LEOs. These immigrants would rather come in through the gate than a dangerous crossing where they have to pay/fund violent criminals. Make it easier to enter (i.e. raise the quotas and eliminate much of the paperwork) and track and many of the problems would resolve themselves at a MUCH lower fiscal cost as well as less infringement on constitutional rights.

  7. Re: “Ø A valid federal, state or local government issued identification, if the issuing entity requires proof of legal presence before issuance.”

    My state, Washington, is one of the three states that does NOT require legal presence before issuance – in fact, a visiting non-citizen could fairly easily get a DL here if they really wanted to. So, if I am travelling through AZ and I get stopped by a cop for any reason and he decides that my accent or general suspiciousness of the LEOs in general is enough to warrant questioning my citizenship, will I then be detained until the Federal Government can fully provide proof of my citizenship because my state does not meet thier standard of proof?

    If Sheriff Joe was not enough, this is one more reason to avoid AZ…

  8. FFLEO, LOL. Thanks, but I hope I’m not coming across as too legalistic.

  9. Byron, I totally agree with you on the burden on the police. We already expect more of them than we should. And my own (slightly cynical) view of human nature tells me that those few cops who will actually feel comfortable implementing the statute are also the few most likely to abuse their authority in the process.

  10. Mike Appleton:

    I am not in favor of an internal passport/national identity card but some sort of national ID card could be used to prevent voter fraud as well as get some sort of handle on illegal aliens.

    You are right in that this is ripe for abuse on a grand scale. The police would have to be saints and well versed in law for this to work.

  11. FFLEO, thanks for the citation to the Arizona statute. I have now had a chance to read it completely. From a stylistic standpoint, it is not good work. It appears to have been drafted with a degree of haste and it shows in the wording and sentence structure.

    Substantively, I understand Prof. Turley’s distinction between statutes which are unconstitutional on their face and those which may prove to be unconstitutional in their application. However, I still believe that the statute is facially unconstitutional. The “reasonable suspicion” standard will invite abuse and litigation. The meaning of the phrase “any lawful contact” is also open to broad interpretation. For example, if I stop a police officer to ask for directions, does the circumstance of my request mean that I am obligated to prove my citizenship upon demand? If I produce a Florida driver’s license, how is the officer supposed to determine whether it meets the requirements of the Arizona law? How many pretextual traffic stops will the legislation encourage? May the State of Arizona mandate that the State of X issue an Arizona-approved form of identification for State of X residents who don’t drive, but who wish to travel through or vacation in the State of Arizona?

    There is a great deal more that can be said about the public policy underlying the legislation, but bad public policy is not unconstitutional. In the absence of federal preemption in this area, however, we may eventually wind up with a confusing and absurd patchwork of local legislation that can only be overcome through the adoption of a uniform internal passport for travel among the various states. This legislation is a product of pure policial pandering.

  12. This all seems to be so silly! I don’t understand that if someone is “illegal” the law can’t arrest them? Does each State need it’s own law concerning “illegal alliens?” Did Arizona tell their police to arrest only Mexican “Illegal” alliens, or all illegal alliens? There are so many from Canada & Brittain as well you know! Is that racial profiling against white folks too? Mexico it seems cant get over losing that little war we had with them…where we won Texas and established a “border”. We need a super-fence and US Army patrols to keep the “crime element” out of the US from it’s main source, Mexico!! There is also a stupid law that makes a baby born here (in the US) a US citizen, even if the parents came here illegally! The best way I see of solving these problems is to make Mexico a State! We can take it over, and easily control the Mexican border…I hope! Too many Mexicans is why we have so much crime, and conflicts, I believe there is more racial profiling by Mexicans & Blacks, than whites!
    For sure! I here all the time about whites being “racial”, but it’s a way to justify their crimes only…the way I see it.

  13. Move over Arizona:

    AL-GOV Candidate: English-Only Driver’s License Tests Please! (VIDEO)
    Eric Kleefeld | April 28, 2010,

    AL-GOV candidate Tim James (R)

    The campaign of gubernatorial candidate Tim James (R-AL) says that his ad proposing English-only driver’s licenses tests has been a big hit — and that it represents a simple solution to the illegal immigration problem that has become a huge issue in the state.

  14. Here is a summary of the basis provisions of SB 1070 from the official AZ website:


    Enforcement of Immigration Law

    · Prohibits law enforcement officials and law enforcement agencies of this state or counties, municipalities and political subdivisions from restricting or limiting the enforcement of the federal immigration laws to less than the full extent permitted by federal law.

    · Requires officials and agencies to reasonably attempt to determine the immigration status of a person involved in a lawful contact where reasonable suspicion exists regarding the immigration status of the person, except if the determination may hinder or obstruct an investigation.

    · Stipulates that if the person is arrested, the person’s immigration status must be determined before the person is released and must be verified with the federal government.

    · Stipulates that a law enforcement official or agency cannot solely consider race, color or national origin when implementing these provisions, except as permitted by the U.S. or Arizona Constitution.

    · Specifies that a person is presumed to be lawfully present if the person provides any of the following:

    Ø A valid Arizona driver license.

    Ø A valid Arizona nonoperating identification license.

    Ø A valid tribal enrollment card or other form of tribal identification.

    Ø A valid federal, state or local government issued identification, if the issuing entity requires proof of legal presence before issuance.

    · Requires that if a person is convicted of any state or local law, on discharge from imprisonment or on the assessment of any monetary obligation imposed, ICE or U.S. Customs and Border Protection (CBP) must be immediately notified.

    · Authorizes a law enforcement agency to securely transport an unlawfully present alien to a federal facility.

    · Requires a law enforcement agency to obtain judicial authorization before securely transporting an unlawfully present alien to a point of transfer that is outside of Arizona.

    · Prohibits, except as provided in federal law, officials and agencies of counties, cities, towns or other political subdivisions from being prevented or restricted from sending, receiving or maintaining information relating to the immigration status, of any individual or exchanging that information with another governmental entity for the following official purposes:

    Ø Determination of eligibility for any public benefit, service or license.

    Ø Verification of any claim of legal domicile if legal domicile is required by law or judicial order.

    Ø If the person is an alien, determination of the person’s compliance with federal registration laws.

    Ø Pursuant to federal laws regarding communication between government agencies and federal immigration agencies.

    · Stipulates that these provisions does not implement, authorize or establish and cannot be construed to implement authorize or establish the REAL ID Act of 2005, including the use of Radio Frequency Identification (RFID).

    · Allows a person who is a legal resident of this state to bring an action in superior court to challenge officials and agencies of the state, counties, cities, towns or other political subdivisions that adopt or implement a policy that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law.

    · Requires the court to order any that a violating entity pays a civil penalty of at least $1,000 and not to exceed $5,000 for each day that the policy has remained in effect after it has been found to be violating these provisions.

    · States that the court will collect the penalty and transmit the collected monies to the state Treasurer for deposit in the Gang and Immigration Intelligence Team Enforcement Mission (GIITEM) Fund.

    · Authorizes the court to award court costs and reasonable attorney fees to any person or any official or agency that prevails in a case brought under these provisions.

    · Indemnifies officers against actions brought under these provisions, except if the officer has been adjudged to have acted in bad faith.

  15. Prof Turley,

    Thank you for this additional post. You are clearly looking at this case more objectively than those in the media are, including Mr. Olbermann.

  16. I do seem to remember something about “vagueness” and “arbitrariness” in testing the constitutionality of statutes. Maybe someone in the DOJ has come across those cases.

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