DOJ vs. Arizona: The battle over preemption; Updated with complaint link
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Here it comes. After months of advance hype and threats, Team Obama is reportedly set to file suit against the state of Arizona over its immigration enforcement law. The Washington Post says the filing could come today.
The word of the day: “Preemption.”
The lawsuit, which three sources said could be filed as early as Tuesday, will invoke for its main argument the legal doctrine of “preemption,” which is based on the Constitution’s supremacy clause and says that federal law trumps state statutes. Justice Department officials believe that enforcing immigration laws is a federal responsibility, the sources said…The preemption doctrine has been established in Supreme Court decisions, and some legal experts have said such a federal argument likely would persuade a judge to declare the law unconstitutional.
But lawyers who helped draft the Arizona legislation have expressed doubt that a preemption argument would prevail.
Rosemary Jenks at Numbers USA has some helpful legal context:
The Supreme Court has stated clearly and often that the U.S. Constitution gives Congress “plenary power” over immigration policy, meaning that Congress has virtually unlimited authority to regulate immigration into the United States. The Supremacy Clause of the Constitution says that federal law supersedes conflicting state law. In immigration matters, the courts have consistently held that this means that states may enact immigration-related laws that go as far as, but no further than, duly enacted federal laws, except in areas where Congress has specifically preempted state action. (The primary example of Congress preempting state action is 8 U.S.C. 1324b(h)(2), which prohibits states and localities from “imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens,” which is why states and localities must tie E-Verify mandates to the issuance of business licenses.) Congress has not preempted state or local action regarding any of the federal laws that the new Arizona law seeks to enforce, so long as the state law goes no further than existing federal law. The Arizona law was drafted meticulously to ensure that it complies fully with the U.S. Constitution and with federal immigration laws.
Hans Bader noted last year that left-wing attorneys are selective supporters of preemption doctrine:
Other Obama appointees, like attorney general Eric Holder, are also big supporters of gun control. (Holder has argued that the Second Amendment does not protect any individual right).
Many (but not all) state constitutions protect the right to possess a firearm. But liberal administrations often seek to use federal workplace laws to try to override rights protected by state constitutions or laws. For example, the Clinton Administration argued that a federal law called Title VII overrode California’s broad equal-protection guarantees, which forbade racial quotas and preferences in government contracting, college admissions, and public employment. This “preemption” argument was rejected by a federal appeals court in Coalition for Economic Equity v. Wilson (1997). (Ironically, liberal lawyers often oppose preemption when it expands individual freedom, like federal curbs on baseless state-court lawsuits. The Obama Administration opposes preemption when it would prevent trial lawyers from bringing lawsuits).
SB1070 author Kris Kobach responded to the preemption issue back in April:
NLJ: How did you ensure that S.B. 1070 conforms with federal pre-emption doctrine, which is likely to be the major basis for challenging the law?
KK: The provision of the law that many have focused on is the one makes it a misdemeanor for an alien to fail to carry registration documents on his person. They fail to mention that an individual is only guilty if he is in violation of 8 USC sec 1304(a) or 8 USC 1306(e). Those provisions have been around since 1940, making it a crime to fail to register or carry certain documents. The state statue literally refers to those federal statutes. A person can only be guilty under the state statute if he is guilty under the federal statute.
The principle that protects the Arizona law is the legal principle of concurrent enforcement. This has been recognized by several courts, including the 9th Circuit. It holds that a law is not conflict-preempted if the state law prohibits the same behavior that is already prohibited by federal law. Similarly, if a state officer acts in a way to assist the federal government in that action, he concurrently enforces what is already prohibited under federal law.
That principle guides any interpretation of S.B. 1070.
The controlling Supreme Court precedent is 1976′s De Canas v. Bica. In that case, the Supreme Court recognized states may enact legislation to discourage illegal immigration within their jurisdictions. The mere fact that a state law concerns illegal immigration or affects immigration in some way does not render it pre-empted.
The Arizona law is scheduled to take effect July 29 — and the open-borders mob is gearing up. Remember Saul Arellano? The now-10-year-old son of illegal alien deportation fugitive Elvira Arellano has been hauled back from Mexico to join pro-illegal alien activists on another amnesty march to the Washington.
Good thing such kiddie human shield antics don’t cut it in a rational court of law.
***
Related: Arizona Democrats running as fast as they can away from Obama.
Update: Here you go.
Update: You can find the complaint here via William Jacobson.
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“AZ decided they needed to enforce the federal immigration”
Come on folks. I expect the left to get this stuff wrong, not here. Arizona is NOT enforcing any immigration laws. SB1070 is not taking the place of some Federal Immigration law because the Fed’s have blown it.
If when stopped for the “first” crime, or the suspicion of committing the “first” crime an officer of the law suspects a person is in the country as an immigrant, legally or illegally, that law enforcement office will check on a persons immigration status. If that person has a driver’s license, the process stops. If that person does not have the proper identification local law enforcement turns the person over to the proper authorities. Arizona is not going to start housing illegal immigrants long term nor enforce or make up new immigration law.
It will be up to the feds to handle those arrested for not having proper documentation.
This is why when the director of ICE hinted ICE would not take these folks off AZ’s hands, THAT was a big deal and was appropriately smacked down.
SB1070 just empowers local law enforcement to find out and then do something, as in hand them over to ICE, with folks who are in this country illegally.
It does not define “illegal”, it does not take over for the Feds who aren’t doing their job. It is not Arizona’s controversial immigation bill…..
Notice how the ObamaCare bill is never referred to as “controversial”, even though it’s way more unpopular.
Hezbollah at our southern Border.
A federal lawsuit against Arizona’s new anti-illegal immigration law which however it goes will surely delay any real attempt to secure this state’s border with Mexico.
Glenn Beck”s insistence that a “Reichstag” moment is near at hand.
NASA is now to endeavor to improve relations between the US and the Muslim states.
Does anyone else see a common thread here. Lets see, the midterm election is only 120 +/- days away.
Obama and the democrats are against the ropes.
Hezbollah is an international terrorist organization busy at our border with Mexico. (A nuke or a bio weapon maybe)
There have been rumors for a longtime that some kind of catastrophic incident would occur that would set off Martial Law in such a way to stop the election.
Beck is seeing this as similar to the conditions leading to the Reichstag fire in pre-warII Germany.
NASA as a signal/unknowing messenger to the Muslim world that all is going well and according to plan toward the crippling of the US as a world power.
Imagine if old Elvira had pulled her kiddie shield/sanctuary stunt with under the Obama Administration? Not only would she be 10 times the celebrity among the amnesty activists today, but a directive along the lines of an Executive Order would have been issued that not one ICE agent dare arrest or deport her. Not to mention as a “low priority” as a “minor” criminal with a US citizen child and as a “sole provider” under ICE’s most recent guidelines for arrest or deportation of illegals, she would likely be free to continue to flout the law with virtual impunity.
As the Arizona SB1070 is tied to the Fed’s laws on what constitutes “Illegal Immigration” there’s no way this law preempts federal jurisdiction.
It’s hard to get your arms around this.
1. The suit against the Arizona Illegal-Immigration law contains no language at all regarding Racial Profiling. This was the supposed problem with it and is the underlying problem that all the hullabaloo over this law was,and is about. The suit is about “Preemption”.
2. Since the DOJ had to back off in this manner they have decided that the Bart shooting case in CA has more Racial Profiling meat on it. Here it is clear that a white man (a Police officer) accidental shot and killed a Blackman. The jury returned a verdict of Involuntary Manslaughter. Hey this the DOJ and the Civil Rights group can sink their teeth into. I pity the poor bastard (the cop). He’ll be lucky if he ever sets foot on “free” ground before he is an old man.
Look for the NBPP to be front and center on this one.
BTW are these clowns the leadership for HBO’s Brown Shirts made up of well funded ACORN, SEIU, NEA et al, volunteers.
hmmmmmmmmmmm?