Jul 6, 2010 5:17 PM by Melissa Canone

RANT: Do You Think Arizona's Law Is Unconstitutional

PHOENIX (AP) - The federal government took a momentous step into
the immigration debate Tuesday when it filed a lawsuit seeking to
throw out Arizona's crackdown on illegal immigrants, calling it a
law that blatantly violates the Constitution.
The lawsuit filed in federal court in Phoenix sets the stage for
a high-stakes legal clash over states rights at a time when
politicians across the country have indicated they want to follow
Arizona's lead on the toughest-in-the-nation immigration law.
The legal action represents a thorough denunciation by the
government of Arizona's action, declaring that the law will "cause
the detention and harassment of authorized visitors, immigrants and
citizens who do not have or carry identification documents" while
altogether ignoring "humanitarian concerns" and harming
diplomatic relations.
Supporters of the law say the suit was an unnecessary action by
the federal government after years of neglecting problems at the
border. Republican Gov. Jan Brewer called the lawsuit "a terribly
bad decision."
Arizona passed the law after years of frustration over problems
associated with illegal immigration, including drug trafficking,
kidnappings and murders. The state is the biggest gateway into the
U.S. for illegal immigrants, and is home to an estimated 460,000
illegal immigrants.
The law requires officers, while enforcing other laws, to
question a person's immigration status if there's a reasonable
suspicion that they are in the country illegally. The law also
makes it a state crime for legal immigrants to not carry their
immigration documents and bans day laborers and people who seek
their services from blocking traffic on streets.
Other states have said they want to take similar action - a
scenario the government cited as a reason for bringing the lawsuit.
"The Constitution and the federal immigration laws do not
permit the development of a patchwork of state and local
immigration policies throughout the country," the suit says.
The heart of the legal arguments focus on the Supremacy Clause
of the Constitution, a theory that says federal laws override state
laws. The lawsuit says there are comprehensive federal laws on the
books that cover illegal immigration - and that those statutes take
"In our constitutional system, the federal government has
pre-eminent authority to regulate immigration matters," the
lawsuit says. "This authority derives from the United States
Constitution and numerous acts of Congress. The nation's
immigration laws reflect a careful and considered balance of
national law enforcement, foreign relations, and humanitarian
The government is seeking an injunction to delay the July 29
implementation of the law until the case is resolved. It ultimately
wants the law struck down.
State Sen. Russell Pearce, the principal sponsor of the bill
co-sponsored by dozens of fellow Republican legislators, denounced
the lawsuit as "absolute insult to the rule of law" as well as to
Arizona and its residents.
"It's outrageous and it's clear they don't want (immigration)
laws enforced. What they want is to continue their non-enforcement
policy," Pearce said. "They ignore the damage to America, the
cost to our citizens, the deaths" tied to border-related violence.
The lawsuit is sure to have legal and political ramifications
beyond Arizona as the courts weigh in on balancing power between
the states and the federal government and politicians invoke the
immigration issue in this crucial election year.
Reflecting the political delicacy of the issue, three Democratic
members of Congress in Arizona asked the Obama administration not
to bring the suit in a year when they face tough re-election
battles. On the Republican side, Sen. John McCain is locked into a
tough primary fight as his right-leaning GOP challenger takes him
to task for his earlier promotion of comprehensive immigration
reform, which he has since abandoned in favor of a message to
"Complete the danged fence."
The case focuses heavily on the legal argument called
pre-emption - an issue that has been around since the Founding
Fathers declared that the laws of the United States "shall be the
supreme Law of the land."
The Obama administration's reliance on the pre-emption argument
in the Arizona case marks the latest chapter in its use of this
legal tool.
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 preemption in an effort to
undermine a wide range of state health, safety and environmental
"The case strikes me as incredibly important because of its
implications for the immigration debate," said University of
Michigan constitutional law professor Julian Davis Mortenson. "The
courts are going to take a close look at whether the Arizona law
conflicts with congressional objectives at the federal level."
Kris Kobach, the University of Missouri-Kansas City law
professor who helped draft the Arizona law, said he's not surprised
by the Justice Department's challenge but called it
He noted that the law already is being challenged by the
American Civil Liberties Union and other groups opposed to the new
"The issue was already teed up in the courts. There's no reason
for the Justice Department to get involved. The Justice Department
doesn't add anything by bringing their own lawsuit," Kobach said
in an interview.


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