The Justice Department filed suit last week against Arizona’s S.B. 1070.
It based the complaint on the Supremacy Clause of the Constitution. Congress has preemptive power over immigration because the Constitution provides Congress shall have the power “to establish an uniform rule of naturalization.” It argued the Constitution and federal law do not allow “a patchwork of state and local immigration policies” around the country. It also posited Arizona’s law will “cause the detention and harassment of authorized visitors, immigrants and citizens who do not have or carry identification documents” while ignoring “humanitarian concerns” and harming diplomatic relations. Further, having to respond to all the Arizona arrests would divert federal attention from going after the dangerous, felonious illegal immigrants.
It is not a suit about a conflict between Arizona and U.S. law.
If it were a conflicts case, then the Justice Department would be suing Berkeley, San Francisco and other sanctuary cities whose sanctuary laws conflict with the federal laws.
It’s not a suit, unlike many of the 6 other suits filed against Arizona, based on unconstitutional racial profiling. The Arizona statute expressly forbids racial profiling. In addition, it is almost impossible to obtain anticipatory relief, striking down a statute on the grounds that it might result in unequal protection when subsequently enforced. It is also not about racial profiling because any intelligent law enforcement officer knows how to racially profile under almost any statute without expressly doing so; e.g. a broken taillight or burnt out turn signal.
The Justice Department is essentially arguing “field preemption,” that is, the entire field of immigration law is vested exclusively in the federal government, and, as a fallback failing field preemption, Congress has enacted a comprehensive federal law. Preemption also occurs when the state law allows conduct banned by federal law, or otherwise stands in the way of accomplishing the federal program. Congress is free to expressly ban or allow (“savings clauses”) state action.
Very few areas in fact have field preemption, and the Supreme Court has not extended field preemption to immigration law. Congress is silent on expressly preempting or allowing state immigration actions.
A 2002 Justice Department memo held that state police officers have inherent power to arrest undocumented immigrants for violating federal law.
It is not about a comprehensive federal immigration law because both Presidents Bush and Obama have called for comprehensive immigration reform.
It is also not about Arizona deporting illegal immigrants, unlike the LAPD in the 1930’s. Under the Arizona statute, Arizona will turn them over to ICE.
It is not about proof of legal residence with the appropriate identification. A valid Arizona drivers license or identification card, a valid tribal enrollment card, or any valid United States federal, state or local government issued ID will satisfy Arizona’s requirements for documentation.
Anyone driving a car must produce a driver’s license. We know that in California many undocumented immigrants are driving without a license and have accidents. That’s criminal behavior in both California and Arizona.
The federal lawsuit is an attempt to prevent other states from enacting similar statutes. Attorney General Eric Holder has just threatened Arizona with another lawsuit if it finds racial profiling after implementation of the statute.
It’s pure politics. President Obama is trying to arouse the Hispanic base of the Democratic Party for the mid-term and 2012 elections.
It’s a political gamble that President Obama can raise the Democratic vote in November without turning out more Republican votes.
What it should be is the start of a Congressional debate on the future of America’s immigration laws. President Obama delivered a speech a week earlier, asking for enactment of a comprehensive immigration reform, requesting Republican support, and stating it was not “politics” that was driving him.
Congress, an unwilling Congress, needs to address and resolve the debate. However, neither Democrats nor Republicans want to vote on the divisive issue. Options include tighter enforcement, mass deportations, no birth right citizenship, a path to naturalization, The Dream Act, full amnesty, guest worker privileges, or a combination of these.
Significantly, President Obama has not, and is not, trying to push immigration reform through Congress. He knows it will either go nowhere in this Congress, or result in a bill he is fundamentally opposed to; i.e. vigorous enforcement with no path to naturalization.
President Obama could have gotten a bill through Congress early in his administration during his honeymoon period. Admittedly, he had to deal with economic issues, but he also spent most of the first year and a half pushing a transformative health reform plan through Congress. That was his priority eventhough he had promised comprehensive immigration reform during his first year in office, “Si se puede.”
Senator Harry Reid of Nevada is appealing to Hispanic votes in his underdog reelection campaign eventhough he refused to let the Senate consider the McCain Kennedy Immigration Reform Bill three years ago during the Bush Administration. An amnesty bill was no more going to pass Congress then than it is today.
Arizona’s S.B. 1070 should be the catalyst for resolving America’s immigration debate. Instead, the debate is just breeding more cynicism.