Obama Administration Challenges Arizona Law

The Obama Administration filed a challenge of the Arizona immigration law in a move that comes with great legal and political risks. As noted in a recent column, the Arizona law remains quite popular around the country and the Administration will be in the unenviable position of arguing that increased enforcement conflicts with its own policies. Legally, the Justice Department will have to make out a case for implied preemption.

As expected, the Justice Department is arguing that there is no room for state enforcement in this federally controlled area. The Justice Department wrote that “[i]n
our constitutional system, the federal government has pre-eminent authority to regulate immigration matters. This authority derives from the United States Constitution and numerous acts of Congress. The nation’s immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests.”

The Justice Department is also seeking an injunction which will expedite review. In such a request, the Justice Department must show that it is likely to prevail on the merits. The early challenge by the Justice Department indicates 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 conflict 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.

The complaint states that increased enforcement by Arizona would frustrate federal policies:

The United States understands the State of Arizona’s legitimate concerns about illegal immigration, and has undertaken significant efforts to secure our nation’s borders. The federal government, moreover, welcomes cooperative efforts by states and localities to aid in the enforcement of the nation’s immigration laws. But the United States Constitution forbids Arizona from supplanting the federal government’s immigration regime with its own state-specific immigration policy – a policy that, in purpose and effect, interferes with the numerous interests the federal government must balance when enforcing and administering the immigration laws and disrupts the balance actually established by the federal government. Accordingly, S.B. 1070 is invalid under the Supremacy Clause of the United States Constitution and must be struck down.

Notably, the complaint emphasizes that federal policy is often not to enforce immigration laws or at least not to deport. It refers to Arizona’s effort to arrest illegal immigrants as “attrition through enforcement:”

S.B. 1070 (as amended) attempts to second guess federal policies and re-order federal priorities in the area of immigration enforcement and to directly regulate immigration and the conditions of an alien’s entry and presence in the United States despite the fact that those subjects are federal domains and do not involve any legitimate state interest. Arizona’s adoption of a maximal “attrition through enforcement” policy disrupts the national enforcement regime set forth in the INA and reflected in federal immigration enforcement policy and practice, including the federal government’s prioritization of enforcement against dangerous aliens. S.B. 1070 also interferes with U.S. foreign affairs priorities and rejects any concern for humanitarian interests or broader security objectives, and will thus harm a range of U.S. interests.

The Justice Department is certainly correct that it has the power not to deport and has various options in combating illegal immigration. However, simply because an illegal immigrants is handed over to the federal government by a state does not mean that the federal government has to deport them. It would force the federal government to acknowledge such non-enforcement.

Here is a copy of the complaint: 070610_AZlawsuit
Source: Yahoo.

97 thoughts on “Obama Administration Challenges Arizona Law”

  1. Hi there! This article couldn’t be written much better! Looking at this article reminds me of my previous roommate! He constantly kept preaching about this. I most certainly will send this information to him. Fairly certain he’s going
    to have a very good read. Thanks for sharing!

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  3. Blouise

    It is always a pleasure to hear from you.

    That is an expression we always use to infer, that one must always be prepared to fight for what they truly believe.
    My Grandfather always sought to teach us, that life is not measured in full by the things that inspire us to live, but also those things for which we are willing to die to see preserved. (family, cultural and spiritual beliefs etc.)

    It loses allot in translation, it’s kind of like, there is no word in the Tsalagi language as Cherokee, which is actually the Creek tribes name for our people,but we still use it to define to others who we are. Our ancestors used the name “Ani’yunwiw(y)a”, meaning an Indian Family Of The Creator, or “Tsalagi Ayili”, meaning Cherokee Nation.

    Like I said there tends to be allot lost in the translation, but that is kinda close. Besides you will find Native Americans tend to be pro 2nd Amendment. We’re kind of weary when someone wants to take away our guns, “Again”.lol

  4. Marionette Hicks,

    Your words and the sentiments they convey deserve thoughtful reflection which, hopefully, lead to a fuller appreciation of cultural differences and thus a better understanding of others ideas and beliefs.

    I view my country, the United States of America, as still being immersed in the Great Experiment begun by our founding fathers/mothers. We are not finished or even near completion as each new immigrant expands the process and tests or retests the results.

    To quote Thomas Jefferson:
    “Error of opinion may be tolerated where reason is left free to combat it.”
    “If [a] book be false in its facts, disprove them; if false in its reasoning, refute it. But for God’s sake, let us freely hear both sides if we choose.”

    We could do with more patience when listening to viewpoints that differ from our own.

    I am somewhat puzzled by your last line: “Just remember,when all else fails, buy more ammo. It always makes me feel better, and you can never have to much.”


  5. Marionette Hicks:

    “All good things are wild, and free.”*

    ~Henry David Thoreau

    * As with Buddha, I took no offense and very much enjoyed your insights into a foreign culture. The disdain for cacophony and the respect for another’s right to speak shown there is indeed refreshing, but I seem to be drawn to my long held belief that the perception of the brilliance of the wildflower’s bloom depends, in large measure, upon the contrast from its sepals.

  6. I could not agree with you more.

    It is amazing how so many fail to see through the trickery of their false truth’s. They battle nothing more than the straw dogs of their own creation.

    This is what I meant about the Darfur refugees admiration for our sacred documents. They know the true value of these words, as that of priceless.

    I have always found that the deluded concept of universal equality, transcends first to mediocrity, then to the totality of equal oppression.

    Thank you for your response, if my response seems a little disjointed, its the years and jet-lag kicking in. I look forward to participating in your discussions on such a worthy subject, at least while I am Stateside.

    Just remember,when all else fails, buy more ammo. It always makes me feel better, and you can never have to much.

  7. Marionette,

    I for one took no offense at your comment. My initial reply was merely by way of clarification and encouragement for the people of Chad. There are indeed cultural contextual differences in how people within different societies communicate, but I feel that in the end communication of any sort is key to getting the best ideas. However, getting to the best ideas requires tools both collaborative and adversarial.

    Personally, I wish humans in general (not just Americans) were more prone to collaboration. However, here in the States there is another unlabeled war going on and it’s a civil war (an oxymoron if ever there was one). This is the War for the Minds of We the People. Propagators of bad ideas contrary to freedom and liberty (perpetual war, social inequality, inequitable legal systems) are trying to sway the undecided and the weak minded into sacrificing the very liberties and freedoms our Founding Fathers fought so hard for when Jefferson penned the Declaration of Independence – a document I consider to be as important to the vision of America as the Constitution (if not more so).

    Indeed, I consider the Declaration probably the greatest legal document ever drafted. Certainly the most important since the Magna Carte. Just as the people of Chad have a wonderful basis in looking toward the future in the system laid out in our Constitution, they would greatly benefit from the template of a just society contained in the Declaration of Independence. It goes to the very nature of innate rights we all share by merit of simply being born. “We hold these truths to be self-evident . . . ” Jefferson was not just talking about truths applicable only the Colonials, but rather truths applicable to all of humankind when he wrote those words.

    If battle must be had, be it verbal or physical, I can think of no better reason than the defense of liberty and freedom as defined by our most philosophical President. Inclusive society is a necessary component for peace, but that means taking the dividers of society to task by any means necessary as well. But as with all conflicts, better they be resolved by the pen than by the sword.

  8. Dr. Turley

    I appreciate your courteous reply.

    In my 80 years of life, one thing never seems to change. After being in another culture for several months, you will often find yourself unknowingly assimilated upon return. So if any were offended I offer my most humble apology, and offer this as not an excuse, but a means of understanding.

    In a land where such manners of speech are seldom if ever used, one will often find such a variance in dialogue more abrasive than normal upon their return. Much like a farm-boys first trip to Brooklyn.

    The only reason we are glad we did not direct them here, is not personal. To them, such a manner of communication is deemed as savage, for this is how the Janjaweed communicate. They have suffered enough at the hands of those demons, we would never wish for them to revisit such memories as the result of our direction. Even though we know such harm would never be intended.

    Communication in Native Animistic cultures is quite different from the competitive communication of American debate. In such cultures, communication is considered a sacred art, and practiced as an achievement of great discipline. The manner and style of communication employed by the people of Darfur mirror those of the many Animistic tribes throughout the world. They embrace the values of cooperation over competition, respect over contempt and that of dignity over disdain. To them dignity for oneself is not a matter of possession, but a matter of reflection.

    Among the people of Darfur, when one engages in conversation they listen intently, usually looking down and they rarely establish eye contact until the person speaking is completely finished talking, then the next person speaks and fully expects to be able to completely finish their thought, without interruption or glares of indifference. These talks will continue until all have spoken freely. Such forms of circle talk can consist of every village warrior. Unfortunately, women have yet to receive the same cultural status as those here.

    One of their traditional rules of communication is to understand that those who would speak into the ear of condescension do so in a tone that reflects ones contempt. While those who speak into the ear of mutual respect, do so in a tone that reflects ones dignity.

    The reasoning for such beliefs in disciplined communication are many but, based primarily in the belief “ If one chooses to unjustly use their right to speak as a definitive measure, by which to determine the wrongs in others, there shall remain no destiny for either.”

    This is indicative of most that are descendant of Animistic cultures, just as the Native American cultures, including that of my people in the Cherokee Nation. There is a Faith Healer known by the name Dr. Standley that explains such traditions far more eloquently than I do. Dr. Steadly is not just a beautiful woman on the outside but, as you will see on the inside as well. If any here would like to visit her site, you would be honorably welcomed.

    What all of these cultures have long known, is there is nothing wrong with differing manners of thought. It is in fact where we as a people gain the greatest of our strengths. Those who seek to force their beliefs upon others reveal themselves as the weakest of all. Again this is not intended to be disrespectful of any here, it is merely a cultural belief.

    People descended from such ancient cultures often find themselves torn between different manners of belief. However; two things you will never see waiver with-in them, is their conviction to never require of another, what they fail to demand of themselves, as well as; the conviction to the tempered truth that a person will first see in others those things most prevalent in themselves. The good man will see their good; the honorable will see their honor, while the wise will see their wisdom.

    They have long known that freedom is not a thing, which may be lost or stolen, for it is inherent. A man can be oppressed, beaten, and even enslaved but his freedom still exists with-in, only the one who possesses it can offer it for surrender. After all the horrors and abuse they have suffered, they still see themselves as free.

    The closest translation to Animistic freedom in the English vernacular; is Privacy. Ask of another, which they would choose to surrender first, if their answer is any but neither, welcome them to the treacherous trickery of “Double Speak”, for to surrender one is to surrender both.

    Again, I do apologize and welcome any response.

  9. For what it’s worth, I agree with the commentators. Immigration should be a federal issue, just like international relations etc. Can’t have 50 different states with 50 different “immigration laws.”

  10. The corollaries to the Right to Free Speech are the Right to Ignore, the Right to be Offended, and the Right to Counterclaim. The unwritten rule here is and always has been say what you will, but you’d better be able to factually and logically back it up. That’s just a good lesson for anyone who thinks evidence from credible sources is an important thing.

    Make sure the people of Chad understand that freedoms come with both responsibilities and costs, written and unwritten. Otherwise they will lose what freedoms they might gain just as America is steadily losing the freedoms our Founding Fathers fought for when they took the British to task. If they learn this lesson now, perhaps they will avoid the slippery slope on which American freedoms currently rest.

    Best of luck to the people of Chad as they forge their new future.

  11. Dr Turley

    We have just returned from the camps in Chad, and were ask to convey to you their admirable greetings.
    We have been sending your articles for some time, via email to the refugees who were forced to flee there. Believe it or not you are becoming quite popular in regards to Constitutional law. It is amazing to hear their excitement when discussing our constitution, and the high regards that they have for it, and for you as well.

    It is sad that they can see the value in its words, once they are explained, and so many of our own cannot. We dare not tell them that their respect for it, is not echoed by many Americans; less they lose the hope it provides to them.

    They are actually using many of your interpretation’s to write their own, in hopes that one day they will be able to use it for their own autonomous state.

    They would have been accessing your blog, but service in that region of Africa is much like the quality of life, horrific. The majority in the region gain net access on the cell phones, which we get to them.

    I am glad now, that we did not direct them to here. Back when you first started it, there was exceptional intellectual debate. Now it appears to have been hijacked by some sad little people who appear to prefer attacking, or belittling others for expressing their opinion, rather than engaging in any meaningful dialog.

    There is also a letter they sent for you, but I think it is best that I mail it to you rather than posting it here, as I had planned.

    1. Marionette:

      You do us a great honor by sharing our blog with folks in Chad. While I occasionally have to remind our group of our civility rule, they offer some of the most insightful and provocative thoughts on any blog, in my view. Passions will on occasion overwhelm judgment in personal attacks. However, in a blog dedicated to free speech, I try not to intervene. I am very thankful for your work in Chad and flattered that you would use our blog as a bridge for discussion with the people you met in the camps.

      Thanks again for the kind note.


  12. Tootie: ..this replacing of the American people with foreigners is just too good to be true.

    since the only folks that have moved into the Americas without displacing or replacing someone else are early Amerinds it appears as though your warning is about 400 years too late.

    on the other hand

    Secretaría de Relaciones Exteriores is getting impatient to overthrow the Constitucion Politica de los Estados Unidos Mexicanos and this replacing of the Mexican people with foreigners is just too good to be true.

    that may just be what the average Jose* was thinking when all those Texians moved in.

    So maybe you have a point, one thing Arizona probably doesn’t need are a herd of Texians moving in and taking over the place…or do they?

    *or however you say Tootie in Espanol

  13. Democrats (and leftists in the GOP) have to have the illegals for their genocide of WASPS. This speeds things up for them.

    Without the genocide regional and global government (and world-wide Communism) will take longer to achieve.

    The Council On Foreign Relations is getting impatient to overthrow of the Constitution and this replacing of the American people with foreigners is just too good to be true. They’ve been at it for a very long time and they now smell blood.

    So the push to welcome these disloyal, devious, dishonest, criminally-minded cheats and liars will come hard and fast.

  14. We have been through this before, sort of. The Jim Crow laws, who is able to vote law, not being able to sit where you want or sleep in the hotel of your choice, or even being stopped for driving a nice car and not being the right color to drive it. I know a lot of people will not see this as a racial issue,or will not want to admit that it is, but it truly is. The problem is the many are punished for what the few are doing, as a United State Citizen I would not like a police officer approaching me every time I leave my house just because of my skin color with the assumption that I was not born here in the U.S.A.. The truth is there are non legal immigrant from many countries here in the U.S.A.. Why we pick on one culture is pure racism. We need an encompassing law that address the non legal or undocumented immigrants across the board. This is the 21st century and this is the first tine in history that so many people from around the world at the same tine are trying to come here undocumented. the first time this happen, It was a lot easer to get your documents to enter the U.S.A. I guess the old saying “all are welcome” is over. As a citizen I shall watch that my rights do not dwindle to nothing. The laws need to be modernize.

  15. Arizona has some strange ID laws. A few years ago when I was tending bar I had a couple of guys come in, I asked for ID and they both provided Arizona DL.

    The IDs looked legit until I read the expiration date, 2050!! I refused to serve then because of that, I later found out they were legitimate but jebus that’s crazy, who the hell issues a DL that’s good for 50 years?

    I haven’t had a valid ID in 18 years guess I better stay out of AZ

  16. well couldn’t the law be refined some without getting all ball busty about it….

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