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U.S. v. Arizona: A Legal Mismatch Over Who Controls Immigration

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We won't have to wait long to know what the federal courts think of United States v. Arizona, the political-diplomatic-racial-legal-cultural-linguistic-economic missile of an immigration lawsuit headed straight for U.S. District Judge Susan Bolton in Phoenix. Within the next two weeks, and perhaps earlier, the Clinton appointee and former Maricopa County judge will likely rule on the federal government's request to halt enforcement of SB 1070 -- the controversial Arizona immigration law -- before it goes into effect on July 29.

To reach a decision on the feds' rare injunction request, Bolton has to undertake a complex analysis. The burden is on the Justice Department to establish that "it is likely to succeed on the merits" of its challenge to the duly-enacted (and thus presumably valid) SB 1070, that it is likely to suffer irreparable harm absent the injunction blocking the law, and that the injunction is equitable and in the public interest. Although all elements here are contested and contestable, it is the resolution of the first injunction element -- likelihood of success on the merits -- which will serve as an informed preview of how the case may turn out. Rather than waiting for years to get to the answer (see the Prop 8 same-sex marriage trial in San Francisco) all interested parties will know within the month which way the courts are leaning.

Apart from appeasing our instant-gratification attention spans, and perhaps saving Arizona's law enforcement community the effort of preparing for work it may never have to do, the good news about this fast track is that Bolton's quick ruling (and the quick appellate answer from the 9th U.S. Circuit Court of Appeals) will likely create pressure for a political solution no matter who wins in court. If Arizona wins (it almost certainly won't), other states will follow with their own versions of SB 1070 and pretty soon Congress will have to as well. If, however, Arizona loses (it almost certainly will), the populist anger and frustration which has fueled SB 1070 (and its cousins in six other states) will almost certainly intensify and force the Congress to take more seriously its duty to enact legislation designed to address some of the legitimate grievances Arizona has raised.

Even though it's a legal mismatch, the sheer existence of an election-year case captioned: United States v. Arizona will continue to generate a push on Capitol Hill to do something about immigration. The White House understands this, which is why President Barack Obama has been talking for weeks about a "comprehensive" federal upgrade in immigration practices and procedures. Many Republicans do, too. Even as they offer intense public support for what has been called "the Arizona Solution," some are concerned it will drive the fastest growing demographic in the country, Hispanics, further into Democratic arms for generations to come.

There are only the slightest hints of this political theater in the complaint and brief filed Tuesday by the Justice Department. The feds build up Arizona's statute -- "a comprehensive and unprecedented state effort to regulate immigration," the brief reads -- so they can tear it down for Bolton by arguing that the supremacy clause of the Constitution precludes states from enacting legislation that touches upon foreign affairs, "including power over immigration, naturalization and deportation." What is the Arizona law? Here's how government lawyers describe the measure: "Expressly intended to make 'attrition through enforcement' the public policy of all state and local government agencies in Arizona, S.B. 1070 is a set of mostly criminal provisions governing police procedures, immigration enforcement, alien registration, transportation, and employment."

Here's what the feds really think about the Arizona law:
Dissatisfied with the federal government's response to illegal immigration, Arizona has sought, through S.B. 1070, to override the considered judgment of Congress regarding the formulation of immigration policy, and the judgment of the executive branch regarding how to balance competing objectives in implementing the federal immigration laws. Arizona's monolithic "attrition through enforcement" policy pursues only one goal of the federal immigration system -- maximum reduction of the number of unlawfully present aliens -- to the exclusion of all other objectives. To make matters worse, even in pursuing that goal, Arizona's policy will disrupt federal enforcement priorities and divert federal resources needed to target dangerous aliens.
The Arizona law should be voided, federal lawyers argue, because it's contradictory to federal immigration law and policies; that it forces upon illegal immigrants a set of sanctions that the United States, as a whole, does not want imposed. If Judge Bolton believes that SB 1070 really cuts into federal authority in this fashion, she'll have little choice but to grant the government's injunction under the supremacy clause, which the Supreme Court has long recognized as supporting "broad" and "exclusive" federal power over immigration policy. The 9th Circuit will almost certainly do likewise, leaving it up to the conservative Supreme Court to have final say.

Arizona's attorneys will offer their response soon enough -- perhaps as early as Friday -- and when they do they will have to delicately address the issue the feds have framed for Bolton. SB 1070 was not promoted or enacted as a minor tweaking of federal immigration law and policy. It was advertised and endorsed as a dramatic break from federal inertia. Yet to save it from the feds' pre-emption argument, SB 1070's defenders must sell it to the federal courts as mere compliment to the existing federal scheme. That's a terribly tough pivot to make even without the centuries of Supreme Court precedent which suggest Arizona has gone too far.

The Arizona law is more than just a popular uprising against the status quo; it's really a dare, a political challenge to federal power and authority over immigration matters. If you can't do it, or if you won't do it, we'll do it, Arizona is saying through SB 1070. That's as "Western" a sentiment as exists in modern-day America. To its credit, the Justice Department has chosen to meet the challenge. And soon the federal courts will pronounce their judgment. In the meantime, far away from the mean streets of Arizona, it's the Congress and the White House in Washington that hold the power to ease this conflict, help refine immigration laws and policies, and put to rest the notion that 50 desperate responses to illegal immigration are better than one good national plan.

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Love that "Boycott all Arizona Companies" banner - yeah, let's just bring a fellow American State to its knees - that'll show 'em! Make them comply until it hurts. Let's boycott New England lobsterman while we're at it. See how they like that! How about Wisconsin's dairy farmers and North Carolina furniture makers - let's make them all pay!

September 04 2010 at 6:58 PM Report abuse +3 rate up rate down Reply

It has been said on NPR by a Mexican News Reporter that within 10 years the United States will be completely "latinized" and within 50 years Spanish will be the main language. He has said that the first latino (what an ugly word) president of the U.S. has already been born. One of the problems with the Spanish language spoken here is that it's not the upper class Spanish. It's a real primitive slang of Spanish.

August 15 2010 at 9:04 AM Report abuse +5 rate up rate down Reply

Are you all reading the comments? Hatred for the Mexicans, not Hispanics in general, but specifically Mexicans. Then think of all the other hatred that is spewing right now against the Gays wanting to marry legally, the Muslims wanting to build their Mosque, a block away from Ground Zero; Shirley Sherrod's incident, etc, etc. It is true that America is a "Nation of Haters". You all suffer from XENOPHOBIA, this is a word to know because it replaces the word RACISM!!

Hopefully now we will get the Comprehensive Immigration Reform passed this time, and the Dream Act should follow.

August 13 2010 at 8:04 PM Report abuse -9 rate up rate down Reply
1 reply to dmgg711's comment

Muslim is not a race and neither is Hispanic.

September 15 2010 at 4:12 PM Report abuse +2 rate up rate down Reply

I think the Republicans are starting to realize by saying "no" on Comprehensive Immigration Reform for too long, they are distancing the Hispanic vote from the Republican vote:

WASHINGTON, April 25 (UPI) -- Two Republican U.S. senators said Sunday they'll join other GOP lawmakers to block Democrats' efforts to push ahead with immigration reform.
I just don't think this is the right time to take up this issue, with the border security problems, the drug wars going on across the border, 10 percent unemployment," Senate Minority Leader Mitch McConnell, R-Ky., said on "Fox News Sunday."
Sen. Saxby Chambliss, R-Ga., said on CNN's "State of the Union" other issues pending in Congress must take precedence over immigration reform."We've got a lot of work left on our plate between now and the end of the summer, and we're starting on financial regulatory reform," he said.

August 13 2010 at 7:27 PM Report abuse -3 rate up rate down Reply

You have to be excited everytime the left attacks the AZ law which 0ver 70% of America supports. It looks brighter for the GOP in November at every criticism. Especially with Dem's top priority in 2011 being legalizing illegals so they can compete in a 10% unemployment market in America.

August 12 2010 at 12:23 AM Report abuse +12 rate up rate down Reply

Arizona had every right to do what they did! Federal government refuses to do anything about our borders or illegals. I feel that the next step should be criminal charges filed against every elected official, who refuses to do anything, for conspiracy. They allow our nation to be assaulted by millions of illegal immigrants every year! All they want to do is give amnisty. Well, that is not what the American people demand that government does. File suit against Arizona? Just who do you think pays for that in November?

August 05 2010 at 5:04 PM Report abuse +14 rate up rate down Reply

The Federal Law in question here specificly encourages The States to enact laws coordinating with the enforcement of illegal immigration.
It may very well be a forgone conclusion that a Clinton appointee will rule in favor of the Federal Government, not on rule of law, but on rule of The State Department. This unfortunately leaves the Federal Government wide open for a lawsuit concerning their choices of when where and why they choose not to enforce Federal law. Impeachment.
I see much on the liberal blogs concerning the forgone conclusion that the current administration means business in whatever they decide. The warm,flush feeling leaves me cold however, when I consider the damage these people are doing to the credibility of the Federal Government as a whole.

August 03 2010 at 10:55 PM Report abuse +8 rate up rate down Reply

This is sophistry at its worse. The administration should argue that they see nothing wrong in illegal immigration. The burden falls on illegal aliens who are exploited, and the middle class who have to live next to illegal housing, higher taxes, and are profiled as racist. Do we have any democratic politicians or journalists who think citizenship has any validity anymore?

July 28 2010 at 6:49 PM Report abuse +12 rate up rate down Reply
R L Baker

Illegal Immigration and the Unites States.

There is a growing problem along our southern border that has been festering for over thirty years and which neither political party has had the courage to attack.

The first step is to secure the entire land border on our southern states. Presently the Unites States has 50,000 military personnel stationed in South Korea. Yes, it is a hot spot, however if the North Koreans took military action against the south, those personnel would only be cannon fodder. We have the ability to move forces into that area as they might be needed. So, let’s bring the personnel home, at least seventy-five percent of them and reassign them to the southern border. This situation is not only a law enforcement problem, but a national security concern as well. Because of the security aspect of the situation, the military is both right and lawful for the protection of the American people.

Close all immigration from Mexico. It can be reinstated at a later time after the problem has been resolved. Immigrants who have already filed the necessary application can be processed, but no new applications will be taken.

Hold all employers to be subject to fines for knowingly hireing undocumented aliens. Make the fines stiff and double them for each new conviction.

Complete the fence.

Require all undocumented aliens to register. Forms can be made available through the post office. Allow no more than 90 days for registration after which, when an illegal alien is located they are automatically deported. (Children included)

Issue a limited time (4year) temporary work card for those who do register. Require annual address and work verification. Allow application for U.S citizenship after the first five years of annual registration provided there has no further violation of law. There will be automatic deportation after conviction of violent acts or drug charges once sentence is served.

Once the border is secured and illegal’s who are here have registered, anyone caught crossing the border illegally will be subject to six months in jail and deported. Second offense is awarded a jail sentence of one year and deportation. Three convictions for illegal entry require a life sentence.

Security of the border must take into account the drug traffic and the cartels setting up paramilitary lookouts on American soil. This is totally unsatisfactory. These sites can be located by drones and then must be taken out at all cost and by any means up to and including military ordnance. There is absolutely no reason that the American people have to tolerate this type of illegal drug activity.

Get rid of Eric Holder and his boss, Barrack Obama.

These points are brought up for your consideration and can be used as a starting point to get control of the mess that elected officials have brought upon the citizens of this nation. The majority of citizens in this country are not only in favor of stricter enforcement, they are demanding it.

R.L. Baker
USN (ret)

July 24 2010 at 11:22 AM Report abuse +15 rate up rate down Reply
3 replies to R L Baker's comment

Instead of spending taxpayer money in the courts, have the feds go to Arizona and enforce the federal laws. The Arizona law would not be necessary and go away.
A step toward the illegal immigrant problem: Homeland Security can temporarly shut the major money transfer companies down. Force a change in ID policy to transfer money from this country. If they cant send it home, they will not come. All can be done quickly by Homeland Security due to funds going to terrorists, also stopping illegals sending money home. The legal immigrants have paid alot of fees to the government and dealt with hardships to come here the right way.

July 18 2010 at 8:46 PM Report abuse +22 rate up rate down Reply

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