Tuesday, July 6, 2010

The Long Awaited Arizona Lawsuit

Some key quotes from the request for preliminary injunction filed by that miserable hack against the State of Arizona's enforcement of SB1070 (H/T Legal Insurrection):

[Arizona]...may not establish its own immigration policy or enforce state laws in a manner that interferes with federal immigration law. As such, Arizona’s immigration policy does not simply provide legitimate assistance to the federal government but instead exceeds a state’s role with respect to aliens, interferes with the federal government’s balanced administration of the immigration laws, and critically undermines U.S. foreign policy objectives. S.B. 1070 therefore exceeds constitutional boundaries.

1070 will also impede the federal government’s ability to provide measured enforcement of criminal sanctions so as to accommodate the many other objectives that Congress enacted into the immigration laws. As a matter of law and in the public interest, this Court should enter a preliminary injunction to prevent S.B. 1070 from going into effect.

I admit I am not a lawyer, but I don't find these arguments persuasive on their face. In what way has the state of Arizona done anything that is inconsistent with federal law? The states have already been brought into immigration enforcement, so that particular horse has already left the barn. To now assert that the states can not pass enabling statutes that support the same federal laws seems like a losing argument. From a 2006 report Congressional Research Service of the Library of Congress:
Congress, through various amendments to the INA, has gradually broadened the authority for state and local law enforcement officials to enforce immigration law, and some recent statutes have begun to carve out possible state roles in the enforcement of civil matters. Indeed, several jurisdictions have signed agreements (INA §287(g)) with the federal government to allow their respective state and local law enforcement agencies to perform new, limited duties relating to immigration law enforcement.
Here is my concern, the conservative justices on the supreme court typically take a dim view of state usurpation of federal power. Whereas, the leftists on the court are known to use any logic to support their political view point, see the dissent in McDonald vs Chicago:

In his dissent in McDonald, signed by three liberal justices, Justice Breyer argues that gun rights deserve little or no judicial protection at least in part because they put lives at risk:

Unlike other forms of substantive liberty, the carrying of arms for that purpose [self-defense] often puts others’ lives at risk.... And the use of arms for private self-defense does not warrant federal constitutional protection from state regulation.

This argument ignores social science evidence suggesting that extreme gun bans like those of DC and Chicago cost at least as many innocent lives than they save. Still, gun rights probably do cause at least some deaths that might otherwise have been prevented.

Given this make up of the court, there is a chance that the Supremes may find a federal supremacy argument sufficient to carry the day. However, I think the federal government's own precedents of enrolling the states in the enforcement will be more important. Hopefully, the Court will look at the fact that Congress passed the laws that gave the states the limited authority to cooperate with federal immigration officials by turning over illegals. They should then say to the Justice Department, too bad, you don't like this, get Congress to repeal the laws that require cooperation of state law enforcement.

P.S. Dean makes some of the same arguments here. KT points out the absurdity of suing Arizona while effectively declaring portions of national parks off limits because they have been ceded to illegals. Temple of Mut provided the graphic for this article and a little link love.

1 comment:

  1. Thanks for the link! Lawman had a good point in a comment on my post - child pornography laws are typically Federal, but the enforcement is local. The mechanics seem the same.

    I think it's a mistake to look at this case through the briefs that have been filed as none of us have the background to do the sophisticated analysis of just how laws at all levels intertwine.

    The lawsuit just feels wrong to me. I can't imagine that in 230+ years of legislatures paqssing laws that we don't have a Gordian Knot of legal codes that makes this lawsuit a complete farce.