Justice Dept. Expected to Sue Ariz. on Immigration (On Grounds Will Report Too Many Illegals)

The Washington Post ^ | Tuesday, July 6, 2010 | Jerry Markon

[kristinn]

The Justice Department has decided to file suit against Arizona on the grounds that the state's new immigration law illegally intrudes on federal prerogatives, law enforcement sources said Monday.

The lawsuit, which three sources said could be filed as early as Tuesday, will invoke for its main argument the legal doctrine of "preemption," which is based on the Constitution's supremacy clause and says that federal law trumps state statutes. Justice Department officials believe that enforcing immigration laws is a federal responsibility, the sources said.

SNIP

Secretary of State Hillary Rodham Clinton first revealed last month that the Justice Department intended to sue Arizona, and department lawyers have been preparing their case, said the sources, who spoke on condition of anonymity because the government has not announced its plans. The filing is expected to include declarations from other U.S. agencies saying that the Arizona law would place a undue burden on their ability to enforce immigration laws nationwide, because Arizona police are expected to refer so many illegal immigrants to federal authorities.

[TheThinker]

In other words, they object to this law being too effective in reporting how existing law is being broken.

[luckybogey]

Preemption: In United States, Federal law is the supreme law with highest authority. When there is a conflict between the Federal law and state law, the Federal law is said to preempt - win over - state law thereby displacing the effect of the state law. That’s known as premption..

Based on the above definition of “Preemption”, I don’t understand how the AZ law CONFLICTS with Federal law and the basis of this challenge???

[Reaganwuzthebest]

They’d do that in a heartbeat also. And no court hijacked by liberal judges would note the hypocrisy.

[luckybogey]

Source linked from MM website:

DOJ vs. Arizona: The battle over preemption
http://michellemalkin.com/2010/07/06/doj-vs-arizona-the-battle-over-preemption/

NLJ: How did you ensure that S.B. 1070 conforms with federal pre-emption doctrine, which is likely to be the major basis for challenging the law?

KK: The provision of the law that many have focused on is the one makes it a misdemeanor for an alien to fail to carry registration documents on his person. They fail to mention that an individual is only guilty if he is in violation of 8 USC sec 1304(a) or 8 USC 1306(e). Those provisions have been around since 1940, making it a crime to fail to register or carry certain documents. The state statue literally refers to those federal statutes. A person can only be guilty under the state statute if he is guilty under the federal statute.

The principle that protects the Arizona law is the legal principle of concurrent enforcement. This has been recognized by several courts, including the 9th Circuit. It holds that a law is not conflict-preempted if the state law prohibits the same behavior that is already prohibited by federal law. Similarly, if a state officer acts in a way to assist the federal government in that action, he concurrently enforces what is already prohibited under federal law.

That principle guides any interpretation of S.B. 1070.

The controlling Supreme Court precedent is 1976’s De Canas v. Bica. In that case, the Supreme Court recognized states may enact legislation to discourage illegal immigration within their jurisdictions. The mere fact that a state law concerns illegal immigration or affects immigration in some way does not render it pre-empted.

The law prof behind the Arizona immigration law
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202456983126&slreturn=1&hbxlogin=1

[Stultis]

Based on the above definition of “Preemption”, I don’t understand how the AZ law CONFLICTS with Federal law and the basis of this challenge???

Amazingly, it appears the fed will argue the state law "preempts" federal law not by conflicting with federal law, but by comporting with federal too much!

As I've said recently (in relation to the NASA/Muslims story) I've decided I'm going to have to strap a pillow to the bottom of my jaw for the next two and a half years.

[PATRIOT1876]

*Several cities (Los Angeles, San Francisco, San Diego, Denver, Miami, Houston, Seattle, and more) have declared themselves Sanctuary City.*

Can my city declare itself a Sanctuary City from Federal Income tax? It does seem like there shouldn't be any resistance from the Federal govt if the way they ignore the illegal actions of the other Sanctuary Cities.

[tacticalogic]

The filing is expected to include declarations from other U.S. agencies saying that the Arizona law would place a undue burden on their ability to enforce immigration laws nationwide, because Arizona police are expected to refer so many illegal immigrants to federal authorities.

Can anybody find the link to the news report of how the feds were gearing up to handle the expected massive processing of new citizens in anticipation of an amnesty bill getting passed? They apparently expect to be able to process and naturalize them all in time for the next election. If they can handle that, why can't they handle the same number of deportations?

[cripplecreek]

but considering they are both in the same state, it isn’t too surprising what Ann Arbor city council wants to do.

Of our 83 counties, less than 10 are consistent democrat voting counties.

[texson66]

Amen to that!

[Lmo56]

Joe DiGenova was on Fred Grandy’s radio show today - said there is precedent for AZ’s law and that Obozo pissed off the Supremes at the SOTU speech. Has no doubt that this is going all the way to SCOTUS, says that the law prolly WILL go into effect during litigation [injunctions are usually ONLY issued under compelling circumstances] - and he believes that AZ will prevail ...

BTW: If Kagan is on the Court when SCOTUS hear it - she will prolly have to recuse herself, since the lawsuit is being brought when she is a member of the Administration ...

Also, this is a 10th Amendment issue - anything NOT reserved to the government IN THE CONSTITUTION, nor SPECIFICALLY prohibited by it, is reserved to the States or the People ...

If the government argues pre-emption under the Supremacy Clause, it will prolly be shot down since the Supremacy Clause states that the Constitution [and the laws passed in support of it] are the supreme law of the land.

So, the Constitution DOES NOT SPECIFICALLY RESERVE enforcement of federal laws to the government - NOR DOES IT SPECIFICALLY PROHIBIT the States from enforcing them. And the Supremacy Clause states that the Constitution [and the laws passed in support of it] is the supreme law of the land. AZ merely passed a state law requiring enforcement of a federal law.

Seems to be a no-brainer ...

[HiJinx]

Ping!

[raybbr]

We'll see what John Roberts has to say about that. :)

More importantly - what Kennedy has to say about it. After all, in the end, Kennedy rules the U.S.

[Razz Barry]

The filing is expected to include declarations from other U.S. agencies saying that the Arizona law would place a undue burden on their ability to enforce immigration laws nationwide, because Arizona police are expected to refer so many illegal immigrants to federal authorities.

The feds refusal to enforce immigration laws places an "undue burden" on the states. The states enforcing immigration laws would place an undue burden on the fed. I guess the only thing to do is shoot them as they cross the border.