The DOJ’s Unsupported Suit Against the Arizona Immigration Law
On July 6, 2010, the Holder Justice Department, allegedly without consultation with President Obama, filed suit in federal district court in Arizona to block the new Arizona law intended to enforce existing federal laws against unlawful immigration, something the federal government itself has patently failed to do. The suit asks the court for, among other things, an order restraining Arizona from implementing the new statute later this month as scheduled, pending the outcome of the litigation. It is evident that this was done for partisan political purposes, although it seems quite likely that the political results will not be those which the Obama administration desires.
The suit claims that the new Arizona law was preempted under the Constitution by federal law and is therefore unconstitutional. According to the Justice Department complaint:
In our constitutional system, the federal government has preeminent 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. Congress has assigned to the United States Department of Homeland Security, Department of Justice, and Department of State, along with other federal agencies, the task of enforcing and administering these immigration-related laws. In administering these laws, the federal agencies balance the complex — and often competing — objectives that animate federal immigration law and policy. Although states may exercise their police power in a manner that has an incidental or indirect effect on aliens, a state may not establish its own immigration policy or enforce state laws in a manner that interferes with the federal immigration laws. The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country.
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The complaint goes on at length to explain these claims. However, as analyzed here, there are no federal statutes on which a claim of preemption could legitimately be made:
While controlling immigration is a job of the federal government, Congress has never enacted a statute that expressly bars states from assisting it in the manner contemplated by the Arizona statute. Without any express preemption to rely on, the challengers must resort to making a more difficult “implied preemption” argument. This is a claim that the Arizona law conflicts with federal law, and therefore interferes with the fulfillment of congressional objectives. However, the numerous judicial precedents supporting the Arizona law will make this an uphill climb.
The only significant support for the suit must come from the notion that General Holder is the attorney general and therefore obviously knows best.
The complaint notes:
The Constitution affords the federal government the power to “establish an uniform Rule of Naturalization,” U.S. Const., art. I § 8, cl. 4, and to “regulate Commerce with foreign Nations,” U.S. Const., art. I § 8, cl. 3. Further, the federal government has broad authority to establish the terms and conditions for entry and continued presence in the United States, and to regulate the status of aliens within the boundaries of the United States.
In other words, the area of immigration has been preempted by the federal government and the individual states had better keep their noses out of it, or else. Otherwise, some foreign governments may be offended:
Mexican President Calderon’s Address to Joint Meeting of Congress, May 20, 2010, available at http://www.c-spanvideo.org/program/293616-2. 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. S.B. 1070 has in these ways undermined several aspects of U.S. foreign policy related to immigration issues and other national concerns that are unrelated to immigration.
Tough. Perhaps the Mexican government should do a better job on its own side of the border to diminish the incentives for its citizens to leave.
A dispassionate examination of the legal and quasi-legal claims in the DOJ’s suit makes it plain that the Administration expects to lose. It would be irrational to expect otherwise. Therefore, the suit must be aimed at something other than the nullification of Arizona’s SB 1070.
Given that the federal government has plainly failed to fulfill its Constitutional responsibility for controlling the border, and that the Obama Administration has been unsuccessful at concealing its unwillingness to alter the status quo, under standard contractarian theory the states have resumed their original prerogatives as sovereign entities and may undertake the job for themselves. That would hold water even if SB 1070 was held to supersede federal immigration law, whereas the Arizona measure merely directs its peace officers to take fully legal steps to implement it.
The most plausible explanation for the DOJ suit is that it’s a political stroke: an attempt to curry favor with the Hispanic vote. But that could easily backfire against the Obamunists: non-Hispanic voters in the Democratic base poll as strongly supportive of the Arizona bill. The ultimate verdict, of course, will come on November 2.
There is indeed a very good chance that Obama’s people expect to lose the suit. They merely want to persuade those Hispanic Americans who perceive themselves as victim of white racism that the government is supposedly defending their interests. It’s somewhat cynical—and unlikely to succeed. I doubt if it will even encourage even a few more Hispanics to vote in November. This is perhaps a quintessential example of Obama’s desperation. He is compelled to focus on a secondary issue because of the lackluster economy and failing foreign policy.
I would hate to think Hispanics, or anyone else, is so pathetically gullible as to believe Obama is actually concerned about anything except their vote.
I do not want that type of uninformed people voting and deciding anything..
I find the 1st sentence of the article to be ludicrous; no way no how does Holder file this suit without Obuma knowing and approving of it.
That said, I don’t think the feds can win this case on the merits of the arguments they’ve presented. A smart judge will look two steps down the road and realize the havoc that a precedent in this case will set and he will judge find a way to quash it.
Of course the first sentence is ludicrous, if you ignore the word “allegedly.” The chances that the allegation is correct and that President Obama was not consulted are zero.
Obama always gives himself an “out” doesn’t he???? Just in case the situation isn’t swallowed by the public, he can always claim he didn’t know about it………he’s a perfect politician……..
In the nature of an update, a Rasmussen poll indicates that
Further, as of yesterday, July 8, nearly $500,000 had been donated to assist Arizona in her defense of her immigration law.
Methinks that the Obama Administration may have blotted its copybook rather badly on this one.
Just make Mexico a state, tax the hell out of it, and treat it as bad as this administration treats all states; They’ll love it.
Anything we would be likely to do to the Mexicans would still be 10 times better than how they get treated now. Statehood would be a win for them.
Make Mexico a _Territory_ ; This gives the US Federal government
much more legal freedom of action to fight a short, brutal, but
victorious war against the Drug lords, and raise Mexico to state
status; Lots of shovel-ready jobs building up the infrastructure
without the restrictions of bureaucratic red tape.
The Arizona law in no way usurps federal immigration law. The Arizona law is nothing but clear, even handed specific guidance to Arizona law enforcement re: enforcement of the existing federal statutes (in the face of willful federal non-enforcement). The feds appear to be demanding intentional blindness by all other levels of law enforcement of violations of federal law.
This is much like saying that in the Jimmy Carter’s 55 MPH national speed limit era that no one but the FBI could write speeding tickets.
It is not Arizona who is usurping US immigration law – it is the feds (the executive branch specifically) themselves. The executive branch as sought to change policy without changing the law via selective (or non) enforcement of existing law. Rather than having the courage to propose a change in the actual law (to bring about their desired open border status) and face the voters on this issue – they have effectively changed the law through intentional non-enforcement.
In this law suit – the feds are not demanding that Arizona obey US immigration law. Arizona has every intention to obey US immigration law. The new Arizona law is simply enforcement instruction to law enforcement. What the feds DO seem to be demanding is that Arizona comply with the illegal executive branch policy of intentional non-enforcement of existing law.
In the Federalist no. 45, James Madison writes “The powers to several States will extend to all the objects which, in ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” I understand that to mean State has the right to protect it’s people and their property. Arizona is being invaded by Mexico and if the Federal Government refuses to enforce the federal laws then, Arizona must make and enforce laws for the protection of the people. The only thing that bothers me is that the liberals have been stacking the federal courts with activist judges for years, and I think that they are about to reap from that crop.
Arizona Vs. United States
What I see is that if Arizona prevails it will open the door to damages against the Federal Government.
I can’t wait.
Arizona can file a counter-suit and collect court fees and Attorney fees…BUT
Then I believe they could institute their own comprehensive Border Security Program, build a fence, buy equipment, hire personnel, build holding facilities, processing facilities…repatriate the Mexican nationals in the new buses…and hand the bill to the Federal Government in court.
Hey, they have the job, the obligation and responsibility to secure the border. The bill is theirs. Plus ALL the rest of the States can climb aboard.
Obama may have just mopped himself into a corner.
The Federal Government cannot afford to go through this bloody fight and lose. I see their options limited to either watering it down to save face and beat a retreatby withdrawing and striking some sort of deal with Arizona and honor their responsibility…Tying the case up in court forever…or dismissal.
An outright loss would open a huge can of worms. They just cannot afford to lose.
This could be a lot of fun.
Annex Mexico?
That would mean War. Just so happens, Mexico is already spoken for.
So what it was “spoken for ” when the Spanish got there. Spain was spoken for when the Moors invaded and is now spoken for by the people that killed the Moors. “Owning a large geographic area usually done by the meanest SOB around, at least temporarily.
It will continue as long as people will tolerate unconstitutional rulings from anti-constitutional judges who are but politicians in robes.
Somewhere, some day, somehow, we need to ignore their rulings (since impeachment is anethma to our irrational rulers
The constitution is not rocket science and case law does not a constitution make. Emanations from penumbras can be obtained easier by rubbing a lamp. Let’s stop pretending our society is a society of laws. If we can dump morality and God from the public sphere and just rely upon deception – why not dump law -it’s only a weapon (like truth) for the politicians to manipulate.
The Obama administration surely has tossed this action into the political ring so it can wash its hands of the matter. If there is ugly business to be done, there already exist sufficient government agencies to make sure that it happens. Actual involvement of the President will only occur when there are significant symbolic gains to be had. Voters, after all, do not vote with their wallets, but with their hearts, and only symbolic messages can penetrate.
The state preservation of autonomy in prosecuting and defining crimes really needs to be preserved. The primary benefit from such autonomy is a competitive environment among states providing a testing ground for new policies enabling us to learn which are effective and which are wasteful. If anything, the federal law should be abolished, and each state should make its own decisions regarding immigration policy. But that gets difficult, doesn’t it? Here legal theory doesn’t jive well with geography.
As for laws regulating the flow of immigrants, I am opposed to them, at both the federal and state levels. We have learned that laws regulating trade of goods create dead weight losses to our economy. The same logic applies to regulation regarding the movement of labor.
To be sure there are significant obstacles: Welfare costs would rise. Public schools would be crowded. Wages for lifelong citizens may fall.
But the injustice of entitlement programs extends beyond the application of them to illegal immigrants and applies equally to lifelong citizens. No one should be receiving money transferred through forced taxation, regardless of their birthplace. And competition is what has made our economy great. To fear it now may be merely a testament to our wealth. If increased immigration forces us all to work harder: good! Then we will all be better off.
I am opposed to the lawsuit being filed. I am more opposed to the existence of laws regulating the mobility of labor.
Get rid of immigration quotas. Screen at the border for criminals and disease, but let everyone else in, provided they have to pay their own way.
I think your last sentence is where it all falls down. The liberals want NO screening of anyone, anywhere. Can’t screen for criminals – that would make all the non-criminals feel discriminated against. Can’t screen for disease – one of the benefits people come here for is better health care than they could get at home. No, better just to ignore the legalities and let people come and go. Nothing to see here. Move along…
There is something to be said for a “guest worker” program. Indeed screen all persons at the border (which 99% of countries do). But issue the “workers” an identity card with proof (at their own expense) of non-criminality and health. Holders of this type of ID should not therefore be able to claim any unemployment/welfare benefits, ipso facto; nor any health benefits unless insured or hurt on the job. Regarding “anchor babies”: there should be no such classification as the “guest” is here temporarily, such as a tourist.
Just a thought.
It’s pretty clear that one of the chief motivations for this suit is to show Obama’s base that he is “doing something” about the immigtration problem – even in a purely negative way. Whatever the result in U.S. District Court, this thing is going up the full federal appellate process (and probably down and then up again) and will remain unsettled for some time to come. However the suit will get Obama past the 2010 mid-term elections and keep the Latino vote largely within his camp. It will also provide a little red meat to the elites on the Left.
The Democrats are taking the chance that those who support Arizona’s immigration initiative will be partially satisfied by the specter of a “full court review” of the issue. They are also calculating that any moderate votes that they lose will be offset by fresh commitments from the Latino voting bloc.
As to electricity regulation under the Commerce Clause, the State of Texas has kept their main electric grid electrically disconnected from those outside the state since day one and so have escaped most federal regulation – so far.
My biggest disappointment was Justice Scalia’s vote to uphold federal preemption of marijauna laws during Raich against the direct vote of the citizens of California.
Yes, Holder’s suit was an election year ploy to win Hispanic votes. the Obama Administration is entitled to controlling federal policy but not federal and state law. Arizona is complying with federal law but not with Obama Administration policy. The courts will enforce the law (we hope, expect, and can demand.)
“[a] Screen at the border for criminals and disease, but [b] let everyone else in, [c] provided they have to pay their own way.” “a” is certainly not being done now. “b” is not necessarily desirable – but in any event is a matter of public policy, and Americans aren’t ready to have a billion people in our boundaries. And [c] is unobtainable – we’ve had provisions for the poor since the founding (e.g poor farms), and the bill for our own sick and poor is high enough. No thank you.
It strikes that Mr. Holder and his master, the Alleged Hawaiian, must not know all that many Americans of Hispanic heritage.
I married a woman whose ancestry is half “Land Grant:, (her family having held title to about 20% of what we now call “New Mexico”, and my son’s godmother has high-caste Puerto Rican heritage.
You should hear THEM talk about “the Julios”!
If the Puddinhead Of The United States thinks that a lawsuit to “keep wetbacks comfortable” is a shoo-in for the “-ez vote”, he may be in for an unpleasant surprise.
After AZ. wins, they should sue Mexico for all the illegal alien anchor babys, the health care illegal aliens refused to pay, plus the court/jail costs paid for by American tax payers.
You know, when my dog had ticks, I had to spray her. Otherwise, I would have lost her slowly.
Marxism murders the same way. Ticks are Marxists!
No, Arizona should sue the Federal government.
Mexico has nothing to do or say about it, but the Federal Government is responsible for securing the borders. Like I say, it would be great if Arizona won, filed counter-suit, formed their own border control, fences, camps, courts, personnel…and handed the bill over to the Federal Government in court.
Then all the States could pile on.
I can’t immediately find the link, but someone has suggested that the
ObamaHolder Justice Department sue the sanctuary cities for interfering with the federal government’s enforcement of immigration laws and policy.How silly. That might make a bit of sense and is therefore prohibited.
I believe you may be referring to this -
http://www.breitbart.tv/reporters-question-on-obamas-illegal-immigration-policy-leaves-gibbs-stammering/
Two new cartoons on the Federal lawsuit against Arizona
“Acting Stupidly” at http://drawfortruth.wordpress.com/2010/07/07/acting-stupidly/ and
“Cents-less” at http://drawfortruth.wordpress.com/2010/07/09/cents-les/
Well,
Mexico would have no interest in ceding their government to the good ‘ol USA…
It would take a war.
The final judgment will no doubt favor Arizona – and other States choosing to enforce existing federal legislation.
It’s one thing to endeavor to draft new legislation beyond the purpose and scope of existing federal legislation but that’s not the case with 1070. The Arizona matter is about enforcement of existing laws– which have already been enacted under the supremacy powers of the United States Constitution.
Since when does the President get to pick and choose which laws to enforce?
WTF was he thinking?
E.M.
Arizona Resident
ps
It also pisses me off knowing my Federal tax dollars are advancing an action my states taxes are defending in a suit the parties know the tax payers have no standing. (Az should file its counter-suit and should also file against the cities which passed legislation to harm the Arizona econmy. Its time to put a judicial foot up Obamas ass).