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

4 years ago
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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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