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. Interesting that you don’t present the language of the Constitution which pertains to citizenship by birth. Some problem there?
    Of course there is a problem, because it requires “subject to the jurisdiction of the US”. That is turn means “Not owing allegiance to anybody else. That is what it means.”
    Does anyone seriously believe that illegal immigrants and their children owe allegiance only to the US?
    How naive are you, or is it just inconvenient and better left unmentioned?

  2. Now why would they do something like that? It is crazy to think that AZ can’t do what it wants.

  3. I just read “Mac’s” post, and while I hope that he didn’t intend to be taken seriously, I fear that he did. At the outset I will point out that I do have a proverbial dog in this hunt, being a lawyer who has practiced in the field of immigration for more than 2 decades and who is married to a Colombian national.

    That having been said, I will paraphrase Mark Twain by commenting that “it ain’t so much what a man doesn’t know as what he does know that just ain’t so.” This is particularly true about undocumented aliens. The first misconception about them is that they represent a drain on our economy and eat up vital public services for which everyone else picks up the tab. Yet just the reverse is true. Most undocumented aliens work, albeit in menial labor, and pay substantial amounts of tax. They pay sales tax, just like the rest of us, and they pay property taxes, either directly as property-owners or indirectly as tenants. Those that have social security numbers or tax identification numbers invariably also pay income taxes. Since schools are supported by property taxes, it is incorrect to presume that undocumented aliens attending public schools are riding on somebody else’s dime.

    The second misconception about them is that they are “criminals.” Aliens as a whole are arrested and criminally charged at a far lower rate as a percentage of their population in the US than are US citizens. Moreover, the fact that they are here without any valid status does not make them criminals. The Immigration and Nationality Act is predominantly civil, and undocumented entry and unauthorized presence are civil violations, not criminal ones. The punishment is deportation, and few of the constitutional protections afforded to criminal defendants are accorded to individuals charged with immigration violations.

    The third misconception is that they have a “legal” means of immigrating to the US. The immigration laws and quotas are so restrictive that it is almost impossible for unskilled workers to legally secure employment and residency in the US. Indeed, the waiting list for even skilled workers (even in shortage areas like nursing) is about 5 years. So, you say, let them stay in Mexico? Who do you imagine will pick the fruits and vegetables that you buy at the grocery store? I will agree that US citizens and lawful residents MIGHT be interested, but only if the wages paid were substantially higher. How many of us could afford produce if the wages for itinerant farm workers went up that much? How many small growers would be able to remain in business if the cost of harvest were to increase by that much?

    Mac talks about Canadians and Brits. It is almost impossible for a Canadian to violate the immigration laws of the US, since most are admitted without a visa and are not given a Form I-94 giving them a specified authorized stay. They are treated as “duration of status” unless and until either the Department of Homeland Security or an Immigration Judge determines in the course of proceedings that they have violated the terms of their stay.

    Finally, Mac criticizes the “law” that gives citizenship to children born of undocumented parents here in the US. That “law” happens to be the US Constitution. I recommend that you read it sometime.

  4. So the DOJ is going to challenge the Arizona bill? Strange…since it is based on federal law. Even it it weren’t, does this mean Washington approves of the invasion of our nation along with the crime and destruction it brings? Guess so.

    Today, May 1, is a big Communist holiday. Do you suppose there is a link? Illegals and their supporters are going to march our streets today demanding that we let them continue to invade our nation. Only in America is this allowed. I wonder what other countries would think if we stopped being PC and stood up for ourselves? Political correctness is national suicide.

  5. Mespo,

    A good republic through representative ‘democratic’ government must function as such—via reasoned checks and balances.

  6. FFleo:

    “Change in the Arizona ‘Immigration’ Law”


    Like I said in a another thread, the Court of Considered Public Opinion has ruled, and the good legislators of Arizona are slowly complying.

  7. Change in the Arizona ‘Immigration’ Law


    {“In deciding whom to stop, police may not factor in race, ethnicity or national origin

    Immigration law scaled back

    PHOENIX – State lawmakers voted late Thursday to repeal one of the more controversial provisions from the new law aimed at illegal immigration.

    It was among the last things lawmakers did before adjourning the regular legislative session about 11 p.m.

    HB 2162, approved by the House and Senate, changes the law to specify that when deciding whom to question about immigration status, police may not use race, ethnicity or national origin as a factor.

    That is a significant change from SB 1070 as it was approved by lawmakers and signed less than a week ago by Gov. Jan Brewer. That version of the law permits police to consider any of those factors when deciding if there is “reasonable suspicion” someone is not in this country legally, as long as it is not the only reason for investigating further.”}

  8. [youtube=]

  9. Just before Obama took Immigration reform off his agenda:

    National ID Card Included In Democratic Immigration Bill

    “The Democratic proposal includes increased money for border patrol and drug war agents, equipment, helicopters and unmanned drones. It would create a national ID — which is dubbed a “biometric social security card.” Though Democrats insist that it is not an ID card and can only be used for employment purposes.”

  10. I don’t see how this law could last long as a practical matter. Wouldn’t any US citizen that is arrested for not having “proper documentation” have a 1983 action? In order to receive qualified immunity for a false arrest the officer needs to have good faith and probable cause. I would think the expenses incurred both in defending these actions and as a result of potential tort damages doled out would make enforcement costs prohibitive.

  11. Byron,

    The potential for LEO abuse has always been there, is there now, will always be there, and in my opinion, it is increasing. As we are observing with the proposed lowering of law school requirements (2L instead of 3L requirements) and within many other fields, we are dumbing-down every aspect of training and intellectual pursuits. There are lower standards for LEOs and waivers for past criminal behavior and drug use—as with military admissions. I do not think you can avoid the potential for increased abuse or error in any profession when there are lower standards of admission, retention, and performance evaluations.

    Current officers—without the new Arizona law—can now exact the abuses you suggested. I do not routinely watch Fox News and I do not have a T.V. so my access is via internet; however, I suggest that you view this interview by Megan Kelly (very easy on the eyes) with this AZ Senator Antenori to get his interpretation of some scenarios that might occur under the new law.

  12. FFLEO:

    as a former leo what is your take? You have a good idea as to the general psychological make-up of leo’s, will they over reach? Will they find this to be a pain in the neck or will they even enforce it?

    This is a 2 edged sword in my opinion and has the ability to go against legal citizens. It could theoretically lead to people being held without any good cause.

    For example I am a left wing redneck and don’t like gun owners, I could find some reason to detain people with NRA bumper stickers, I may not be able to hold them for any length of time but I can sure harass them. Or if I am a right wing redneck and don’t like Obama I could hold someone with that bumper sticker. If you remember it was done recently by DHS.

    It is, in my opinion, ripe for serious abuse.

  13. Queen:

    “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.”

    only if she is a member of their bikini team 🙂

  14. “Dupnik says he will enforce AZ immigration law if ‘forced’ to do so”

    “A year ago, Dupnik said schools should be asking about the immigration status of students, saying it’s wrong for taxpayers “to spend the millions and millions and millions of dollars that we do catering to illegals.”

    He stood behind that stance Wednesday, but said it doesn’t mean his deputies should be asking everybody on the street for documents.”

    The sheriff needs to read the new law because he is mistaken that it allows his deputies or any other LEOs to “be asking everybody on the street for documents.”

  15. Well, I have a solution to this constitutional crisis. If Number One raises her right paw—the viewers’ left—then the Arizona law is constitutional. Alternatively, if she raises her left paw—the viewers’ right—then the law is not constitutional. That is more logical than the current rhetorical postulations.

    Professor Turley, you lost some points by stating the overused “show me your papers” phrase in your interview.

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