The Justice Department filed its expected lawsuit against Arizona’s new immigration law (S.B. 1070) yesterday and issued a press release trumpeting its action. It is clear from reading the lawsuit and the press release that politics—not an objective analysis of Arizona’s law—is driving the Justice Department’s action.
This should be no surprise to anyone given the Justice Department’s recent politicized actions in other matters like the New Black Panther voter intimidation case. But it should concern everyone who understands the enormous power of federal prosecutors and the danger posed by an Attorney General who is willing to use that power to achieve the President’s partisan political objectives rather than the interests of justice and the impartial enforcement of the law. The claims made in the case range from ridiculous to being very revealing (perhaps unintentionally) about the Administration’s apparent views about immigration policy.
One of the most interesting things about this lawsuit is what’s missing. After all of the spurious claims and pernicious charges by President Obama, Attorney General Eric Holder, and their radical allies like La Raza that Arizona’s law violated federal civil rights laws, there is no civil rights claim whatsoever in the complaint.
Instead, the Obama Administration argues that S.B. 1070 is invalid because it violates the Supremacy Clause, is pre-empted by federal law, and (most bizarrely of all) violates the commerce clause.
First, the Justice Department claims that Arizona is unconstitutionally interfering with the federal government’s authority to set immigration policy. This claim is nonsense. Arizona is not interfering with the federal government’s immigration policy as it is set in the laws passed by Congress. Arizona is simply complementing and helping the federal government enforce its immigration laws. On the other hand, states that give illegal aliens drivers licenses and sanctuary cities like San Francisco that help illegal aliens violate immigration laws do interfere with federal law, but, as evidenced by the lack of federal lawsuits in those cases, this Administration has no interest in suing to stop that kind of interference. The Obama Administration thus appears to only be interested in stopping enforcement of federal law, not its violation.
The DoJ press release is actually amusing. This is an Administration that has made border security a non-priority and that has demonstrated little interest in fixing the enforcement problem; yet the press release claims that if states and local governments develop policies like Arizona’s, it will “disrupt federal immigration enforcement.” But by enforcement, the Administration actually spends significant time arguing for nonenforcement.
Surely, I jest? No, the lawsuit actually claims that Arizona’s enforcement interferes with Obama’s prerogative not to enforce the law: DHS and other agencies may exercise their “discretion” and choose not to enforce the law for “humanitarian reasons.” Under the new section 2 of the Arizona law, any legal resident of Arizona may bring a civil action in an Arizona court to challenge any official or agency that “adopts or implements a policy that limits or restricts the enforcement of federal immigration laws… to less than the full extent permitted by federal law.” DOJ claims this is bad policy that will “burden” and “divert” federal resources away from federal policy priorities, which it essentially describes as a very limited enforcement regime (supplemented, it should be noted, with discretionary nonenforcement), targeting terrorists and violent criminals but, as experience has shown, essentially ignoring all others.
The most galling aspect of the government’s brief is its treatment of the state’s interest. The DOJ states: “S.B. 1070 (as amended) attempts to second guess federal policies and re-order federal priorities in the area of immigration enforcement and to directly regulate immigration and the conditions of an alien’s entry and presence in the United States despite the fact that those subjects are federal domains and do not involve any legitimate state interest.” (emphasis added).
So despite the deaths of Arizona citizens caused by illegal immigrants involved in smuggling drugs and other illegal immigrants across the border, as well as the enormous costs imposed on local communities by illegal aliens, the Obama Administration believes that local communities have no “legitimate state interest” in this issue. Astonishing.
The weakest claim in the lawsuit is that because the purpose of this law is to deter and prevent the movement of certain “unlawfully present aliens” into Arizona, the law restricts interstate commerce and is thus a violation of the Commerce Clause. This is like saying that because the federal government makes trafficking in cocaine a federal offense, if a state passes a complementary local law punishing the importation of cocaine into the state, it is interfering with interstate commerce. This claim borders on the frivolous.
This lawsuit should be dismissed by the federal court in Arizona where it has been filed. It is a politically motivated lawsuit designed to placate the Administration’s allies who believe in open borders and complete amnesty for all illegal aliens. Arizona should fight this suit as hard as it can. It has fought other lawsuits filed over its prior related laws like its 2004 referendum that requires newly registered voters to provide proof of citizenship and its 2006 law that requires use of the federal E-Verify System and punishes employers who knowingly hire illegal aliens. So far Arizona is 2 for 2, having prevailed in both of those lawsuits. If the state mounts an effective defense of this poorly reasoned and legally unsupported lawsuit, the odds are good that it will be 3 for 3.