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.

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 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.