Experts: 'Ridiculous' Lawsuit Won't Nix Arizona Law on Illegals

Wednesday, 07 Jul 2010 12:53 PM

By David A. Patten

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Top Republicans blasted the Obama administration's lawsuit against Arizona's controversial illegal immigration law Tuesday as "nothing short of ridiculous."

Immigration law experts tell Newsmax that the administration has little chance of prevailing against the Arizona statute, which empowers police to arrest illegal aliens once another violation has occurred.

After weeks of speculation, the Department of Justice filed a 22-page lawsuit in the U.S. District Court of Arizona on Tuesday.

President Obama alleges that the law could contribute to racial profiling.

"In the United States of America, no law-abiding person, be they an American citizen, a legal immigrant or a visitor or tourist from Mexico, should ever be subject to suspicion simply because of what they look like," Obama said when Mexican President Felipe Calderon visited the White House in May.

Apparently unable to substantiate the racial-profiling allegation — the Arizona law doesn't even take effect until July 29 — the administration instead focused its lawsuit narrowly on the Supremacy Clause in the U.S. Constitution.

That clause says federal laws take precedent over state laws. Article 6, Clause 2 of the U.S. Constitution states that laws made "under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding."

Supporters of the Arizona law, however, say it is merely intended to enforce federal laws already on the books.

“The Justice Department’s complaint that Arizona has somehow preempted federal law is nothing short of ridiculous,” Republican Study Committee Chairman Tom Price, R-Ga., said in a statement to the media. “Arizona has simply reinforced longstanding federal laws, whose enforcement the Obama administration is now actively seeking to prevent . . . States like Arizona should not have to act on their own, but Washington’s decades of neglect for border security leave them no choice. The federal government should be vigorously securing the border, not suing the State of Arizona.”

In a sense, Arizona's law is designed to help federal immigration authorities enforce their own laws against illegals — statutes that the feds have largely ignored. The Arizona law, S.B. 1070, was crafted carefully to mimic federal laws on the books precisely to avoid a lawsuit based on federal supremacy.

The Obama administration's lawsuit goes so far as to say S.B. 1070 could damage the conduct of U.S. foreign policy.

"S.B. 1070 has subjected the United States to direct criticism by other countries and international organizations and has resulted in a breakdown in certain planned bilateral and multilateral arrangements on issues such as border security and disaster management," the lawsuit states.

The bill's primary sponsor, Arizona State Sen. Russell Pearce, shrugged off the administration's lawsuit Tuesday, telling Fox News: "We knew they were going to sue. This was written based on their law, knowing they were going to sue. We will prevail.

"They're looking for an easy way to find a liberal judge who will put a TRO [temporary restraining order], so they can usher in amnesty. It is a policy of non-enforcement. This administration . . . it's about time we elect people that have a sacred, and a solemn duty, to the Constitution."

Steven A. Camarota, research director for the Center for Immigration Studies, tells Newsmax that he shares the skepticism that administration will win its lawsuit against the Arizona law.

"In talking with one of the attorneys that helped write [the Arizona law], it's not that likely that the pre-emption arguments or supremacy arguments are going to hold sway," Camarota tells Newsmax. "Because the courts have already ruled that local authorities have the right to enforce federal immigration law even without this [Arizona] law.

"So it's kind of hard to argue that when you create a law that just simply mirrors the federal law that now you've done something that's illegal. There's already precedent saying local authorities can enforce federal immigration law."

Law professor Kris W. Kobach, who has litigated several high-profile immigration lawsuits, told Fox News that it will be hard to convince the courts the states should be barred from participating in the enforcement of federal immigration laws, given that Congress established a Law Enforcement Support Center to help law officers determine whether detainees are illegal.

The center's website states the purpose of the system is to provide "identity information to local, state and federal law enforcement agencies on aliens suspected, arrested, or convicted of criminal activity."

"What Arizona does is it standardizes the practice, and says, 'OK, all law enforcement officers shall do this, shall utilize this system, and here's when you should do it,'" Kobach told Fox News. "So for the federal government now to come out and say, 'Well, we don't want the state and local help' is a little bit two-faced because Congress created this law enforcement support center. The statutes of the federal government clearly contemplate this help."

Judicial precedents in the Arizona court where the case was filed do not bode well for the administration, said Kobach, of the University of Missouri-Kansas City School of Law.

"Many people talk about the 9th Circuit as being a very liberal court," he said. "But the 9th Circuit has a lot of experience in dealing with illegal immigration. And the 9th Circuit has actually ruled on a case that is very similar to this one back in 1983, and the 9th Circuit held effectively in Arizona's favor, saying that 'Yes, states and local police do have the authority to make immigration arrests and to assist the federal government in enforcing federal immigration laws.'"

The Justice Department’s lawsuit states no fewer than 10 times that it has a responsibility to balance conflicting interests in the enforcement of immigration laws, weighing humanitarian and foreign policy considerations.

At times, the suit appears to come perilously close to claiming that the federal government has a sovereign right to enforce, or not enforce, whichever immigration laws it wishes, claiming "the preeminent federal authority and responsibility over immigration."

Among its objections to the Arizona law:
  • It says the law interferes with federal priorities. The federal government, it says, "principally targets" aliens who appear most dangerous or violent. The Arizona law would result in the arrest of anyone found to be in the United States illegally during the course of a "lawful police contact," such as a speeding violation.
  • It states the law could lead to the arrest of immigrants who are waiting for a pending request for political asylum to be adjudicated. The suit states the federal government entertains asylum requests from applicants who are illegal immigrants.
  • The federal lawsuit contends that S.B. 1070 "attempts to second guess" federal policies that "do not involve any legitimate state interest."
  • The lawsuit voices the concern that many other states are considering similar legislation, complicating U.S. foreign policy and overall efforts to regulate immigration.
  • It argues that the "alien inspection scheme" will lead to "countless inspections and detentions of individuals who are lawfully present in the United States." The case is not based on such civil rights concerns, however.
  • It raises the prospect that legal minors without a driver's license or without "an accepted form of identification" could be arrested. The Arizona Motor Vehicle Department requires minors to obtain an instruction or learner's permit, however.
  • The bill also predicts that the Department of Homeland Security would be deluged with requests to verify alien status, thereby placing "a tremendous burden on DHS resources." In other words the administration states DHS, with a $44 billion budget, does not currently have the capability to consistently verify the residency status of aliens, without allocating additional resources.

Camarota suggests that the president's real objective may be political anyway.

"Because [President Obama] can't offer the amnesty crowd anything substantive," he says, "he's got to do something to show he's still with them however … it's symbolically important. I think that's why he's doing it."

One indication of that political sensitivity: Three of the five Democrats who represent Arizona in the House petitioned President Obama not to file the lawsuit challenging the law.

Arizona's GOP senators, Jon Kyl and John McCain, blasted the administration's decision Tuesday, stating "the American people must wonder whether the Obama administration is really committed to securing the border when it sues a state that is simply trying to protect its people by enforcing immigration law."

Kyl and McCain also predicted that the federal lawsuit would be very difficult to win.

The Justice Department's lawsuit will now join at least five other lawsuits already pending against the Arizona law.

U.S. District Judge Susan Bolton has set a hearing date of July 15 in one of them, a lawsuit filed by a Phoenix police officer. That lawsuit requests a temporary injunction to block the law's implementation.

Lawyers for Arizona contend the request for an injunction should be dismissed, because its claims that the law will violate citizens' constitutional rights are speculative.

A hearing related to yet another lawsuit against the law has been scheduled in Bolton's court for July 22.

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