PHOENIX (AP) - The federal lawsuit against Arizona's tough new
immigration law focuses heavily on a question that has been in the
spotlight repeatedly the past decade and dates back to the Founding
Fathers: The right of the government to keep states from enacting
laws that usurp federal authority.
The lawsuit filed in Phoenix federal court on Tuesday
sidestepped concerns about the potential for racial profiling and
civil rights violations most often raised by immigration advocates.
Experts said those are weaker arguments that don't belong in a
legal challenge brought by the White House to get the measure
Instead, the suit lays out why the government believes that
immigration laws passed by Congress and enforced by a range of
federal agencies must take precedence to any passed by a state
The Arizona law requires officers, while enforcing other laws,
to question a person's immigration status if there's a reasonable
suspicion that they are here illegally, such as speaking poor
English, traveling in an overcrowded vehicle or hanging out in an
area where immigrants typically congregate.
The law also makes it a state crime for legal immigrants to not
carry their immigration documents.
Backers of the law say the crackdown is a necessary tool to keep
illegal immigrants out of Arizona and combat problems such as drug
trafficking, murders and violent kidnappings that have become so
common in a state that is home to an estimated 460,000 undocumented
The federal government will ask a judge to grant an injunction
to block the law from taking effect on July 29.
The arguments will focus on a core constitutional concern -
balancing power between the states and the federal government. More
specifically, the issue centers on the long-running "pre-emption"
legal argument that says federal law trumps state law.
"The nation's immigration laws reflect a careful and considered
balance of national law enforcement, foreign relations, and
humanitarian interests," the suit says.
The lawsuit goes on to say that a "state may not establish its
own immigration policy or enforce state laws in a manner that
interferes with the federal immigration laws. The Constitution and
the federal immigration laws do not permit the development of a
patchwork of state and local immigration policies throughout the
Backers of the law say that Arizona will have some strong
arguments in its favor in fighting the lawsuit.
Kris Kobach, the University of Missouri-Kansas City law
professor who helped draft the Arizona law, has said the state law
is only prohibiting conduct already illegal under federal law. And
Harvard Law School professor Gerald Neuman believes Arizona could
make a compelling legal argument that it has overlapping authority
to protect its residents.
But courts have ruled that under the Supremacy Clause of the
Constitution, any state law that conflicts with a federal law is
pre-empted. Federal law, the framers said, "shall be the supreme
law of the land."
The pre-emption tactic has been successfully used by the federal
government on several occasions over the years, including by the
Bush administration to limit product liability lawsuits. The
government also used it to overturn bans on military recruiters
passed by liberal California towns.
Federal courts have invoked the Supremacy Clause on immigration
issues as well. For example, a federal judge in 2008 struck down a
Dallas suburb's ordinance that banned apartment rentals to illegal
immigrants, saying the U.S. government has the ultimate authority
to enforce immigration laws.
Within months of taking office, the Obama White House directed
department heads to undertake pre-emption of state law only with
full consideration of the legitimate prerogatives of the states.
The 2009 directive was aimed at reversing Bush administration
policy which had aggressively employed pre-emption in an effort to
undermine a wide range of state health, safety and environmental
Despite the precedent, that doesn't mean the lawsuit is a sure
winner, or that state officials don't believe they can pass laws
that head into federal turf.
In fact, efforts by many states trying to block the nation's new
health care law run headlong into the Constitution's Supremacy
Clause. But immigration is one area where federal authority has
generally been upheld.
"Immigration has traditionally and constitutionally been the
historic preserve of the federal government, and there are cases
going back to the late 19th century that say as much," said Peter
Spiro, a constitutional law professor at Temple University who has
studied immigration law extensively. "So the Obama Administration
has a lot to work with in filing this claim, and the fact that the
claim is filed by the administration adds credibility ... and
increases the chances that law will be struck down on pre-emption
"That said, it not by any means a slam dunk," Spiro said.
Regardless of how the case is determined at the district court
level, it will likely be appealed. The U.S. Supreme Court is
already set to hear an Arizona immigration case in the fall when it
takes up a challenge to a 2007 state law punishing employers who
knowingly hire illegal immigrants.
If the high court doesn't issue a broad ruling on states' rights
to implement laws on immigration in that case, prepare to see the
case filed Tuesday make to the justices, Spiro said.
"It's clearly an important case. The Arizona law is
unprecedented in its aggressive posture towards illegal immigrants.
It's an important issue federally, really, that's the way the
administration is framing it. They say the states do not have this
kind of role as far an immigration legislation."