PHOENIX – The U.S. Justice Department on Tuesday filed a lawsuit challenging the constitutionality of targeting illegal immigrants, setting the stage for a clash between the federal government and the state over the nation's toughest immigration crackdown.
The lawsuit filed in U.S. District Court in Phoenix argues that Arizona's law requiring state and local police to question and possibly arrest illegal immigrants during the enforcement of other laws such as traffic violations usurps federal authority.
"In our constitutional system, the federal government has pre-eminent authority to regulate immigration matters," the lawsuit says. "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 government is seeking an injunction to delay the July 29 implementation of the law until the case is resolved. It ultimately wants the law declared invalid.
The government contends that the Arizona law violates the supremacy clause of the Constitution, a legal theory that says federal laws override state laws. It is already illegal under federal law to be in the country illegally, but Arizona is the first state to make it a state crime and add its own punishment and enforcement tactics.
Read all about it here.
Intriguing analysis on the part of the Feds (who took long enough to get into this), but it seems odd to me that the AZ law was actually written with these in mind:
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.
Kris Kobach, law professor who wrote SB1070.
It's gonna be interesting.
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