Justice Department files suit against Arizona over immigration law

Liz Goodwin
July 6, 2010

The Department of Justice is suing over Arizona's immigration law, arguing that it interferes with the federal government's right to set and enforce its own border policy.

The long-expected challenge names Arizona Gov. Jan Brewer as a defendant and asks a federal judge in Phoenix to block the law from going into effect before the end of the month.

Justice Department attorneys argue in the filing that the law "will impose significant and counterproductive burdens on the federal agencies charged with enforcing the national immigration scheme" while diverting "resources and attention from the dangerous aliens who the federal government targets as its top enforcement priority."

They also argue that enforcement of the law creates "state crimes and sanctions for unlawful presence despite Congress’s considered judgment to not criminalize such status."

The filing ends weeks of speculation and leaks to the media about when and if the administration would take the rare step of directly challenging a state law.

The lawyers decided against filing a separate civil rights challenge based on the alleged discriminatory impact of the law. But they do argue that citizens will be harassed as a consequence of the law. "It will cause the detention and harassment of authorized visitors, immigrants, and citizens who do not have or carry identification documents specified by the statute, or who otherwise will be swept into the ambit of S.B. 1070’s 'attrition through enforcement' approach," the lawyers write.

As I explained last month, a so-called supremacy challenge, which forms the basis of the Justice Department filing, is much more straightforward than a civil rights suit. Under the latter challenge, lawyers would have to persuade a court that the law infringes upon Americans' civil rights by encouraging police to engage in racial profiling.  The Arizona law has a section saying state authorities should not violate civil rights while enforcing it, so that could be a fairly high bar to clear in an initial court proceeding prior to the law's official entry on the enforcement books. (Researchers at the Congressional Research Service laid out this argument in their report on the law.)

There's less debate over whether the Arizona law would hold up to a supremacy challenge. Erwin Chemerinsky, an expert in constitutional law and the dean of the law school at the University of California, Irvine, told Yahoo! News federal law clearly pre-empts the Arizona measure in his view, rendering the state law unconstitutional.

"The United States Supreme Court has said states can't complement federal immigration law," he said, citing the 1941 Supreme Court case Hines v. Davidowitz. Onetime lawyers who now hold power in Washington, such as Sen. Lindsey Graham (R-S.C.) and Homeland Security Secretary Janet Napolitano, who was Brewer's predecessor in the Arizona governor's seat,  have also said they think the law is unconstitutional for similar reasons.

But Kris Kobach, the author of Arizona's law and many anti-illegal-immigration statutes around the country, tells Yahoo! News that the law will hold up. "There’s not a strong legal argument to be made [against it]," he said. Kobach and other backers of the law say it strengthens and complements federal immigration enforcement, rather than thwarting it.