Arizona Immigration Legal Challenge: Only Fools Rush In?

The Justice Department is taking its time before formally stepping into the constitutional thicket that is Arizona's new immigration law. This may well prove to be the prudent -- and effective -- course of action. Although Washington's self-conscious caution on the topic (a few public comments but no attempt yet to enjoin or strike down the measure) doesn't fit into the frenzied timeline encouraged by cable news, the feds' go-slow approach is politically shrewd and legally wise. It may feel to Latinos in the Grand Canyon State that the sky is falling -- but it hasn't fallen quite yet.

All newly enacted Arizona laws go into effect 90 days after the end of the legislation session that spawned them. The Legislature is still in session for another week. That means we are looking, at the earliest, at high summer -- early August -- before state and local law enforcement officials are both permitted and required to implement the controversial provisions. Between now and then, however, Arizona police may not stop a person based solely upon a "reasonable" suspicion that they may be an undocumented immigrant. The stark new state program -- by its own terms called "attrition through enforcement" -- will not be a springtime 2010 program.

A lot can and likely will happen on this charged topic between now and the dog days of summer. We'll see more demonstrations, more polling and more chatter on Capitol Hill about a federal stab at the problem. Immigration law experts and professors will chime in on the interaction between federal control over immigration matters and the Arizona attempt to end-run them. In other words, the next three months will only add to our collective ability to make an informed and wise choice about immigration policies for Arizona and the rest of the nation. The time is also bound to help the Justice Department win a fight it did not pick and does not want.

For example, it will only help the federal government's inevitable fight to pre-empt Arizona's immigration policies under the Supremacy Clause of the Constitution if other states (like Texas or South Carolina) now quickly follow the Arizona model. One of the purposes in giving the federal government control over immigration is to allow the nation to speak with one voice outside its borders. Two voices on immigration -- Arizona's and the rest of America's -- will be tough enough for the federal courts to tolerate under the doctrine of pre-emption. Three voices, or four, or 10 would be worse. If the Supreme Court reckons there's a state rebellion on immigration afoot, even the most conservative justices will back federal authority.

Like the soldier who declines the invitation to take "point" on patrol, Attorney General Eric Holder is smart to wait for a few special interest groups to litigate first. And, indeed, late last week, at least three separate private lawsuits against the new law were filed in the U.S. District Court of Arizona, two in Phoenix, the other in Tucson. In each instance, the plaintiff seeks to enjoin Arizona from implementing the new provisions. Once the cases are consolidated -- and it's likely they will be soon -- the feds will have the option of joining the uber-case or bringing one of their own. Here, too, time helps the Obama administration.

In law or politics, options always are a good thing. If these private plaintiffs stake out legal positions against the Arizona law that go beyond where the Justice Department wants to be on the immigration issue, the feds can come into the case and say, "No, no, we take a more moderate approach to the problem," a tactic that offers both political upside and legal safe ground. On the other hand, if the private lawsuits end up looking doomed for one reason or another, the feds can simply initiate their own case. There is thus a Plan A and a Plan B.

Compare those benefits of a cautious approach with the alternative scenario: The feds rush to court in the next few weeks, seeking to have the Arizona measure enjoined and struck down as unconstitutional. It's likely the feds still would prevail with a quick lawsuit (so weak is the constitutional underpinning of Arizona's law). But there might be a high political price to pay. Movement conservatives would cite the swift challenge as another example of perceived government aggrandizement. Republican congressional candidates would add it to their stump speeches.

Most important, by taking a legal position so soon after the measure's passage in Arizona, the Justice Department may preclude the sort of political maneuvering room that ultimately begat health care reform laws. The Democrats paid a political price, but the president got his legislation. In this, too, the White House will want the cleanest slate it can get before it starts to barter with Republicans over federal immigration reform. And that means no pointed federal complaint blasting even the most dubious of Arizona's justifications for taking such dramatic steps.

The risk for the administration is that conservative campaign advertisements in the next 90 days will try to cement into place some notion that Arizona is being reasonable and the federal government is being inactive. But it's only May. And there are millions of so-called "independent" voters who are positively mortified that the civil liberties of Arizonans will be jeopardized in this manner. The White House can take a few licks before the Justice Department is poised to act. Besides, Jon Stewart will be around to explain it.

It will take years, perhaps, for the federal courts to digest the legal issues here and offer a definitive ruling. But it will only take a few days or so for a federal trial judge to enjoin the Arizona measure -- to freeze it in place before its implementation. This distinction is crucial to understanding why the feds have more time to play with than you've been led to believe. The Justice Department could initiate a lawsuit on Aug. 1 and still leave itself enough time to get the federal courts to stop the Arizona law before it goes into effect. So why not allow the initial skirmishes to unfold a little further before committing to a plan of battle? He who hesitates will win this, not by a little but by a lot.