Observations on DOJ's Anti-Arizona Lawsuit

By James R. Edwards, Jr. on July 11, 2010

The Justice Department's questionable lawsuit against Arizona's new immigration enforcement law makes for a target-rich environment. This legal action raises countless questions constitutional, legal, political. Here are just a few observations.

First, contrary to Justice's assertion, Congress hasn't preempted state statutes like Arizona's (see Kris Kobach's detailed analysis of inherent state authority and preemption here). States are fully within their rights to exercise their inherent authorities to enact laws that seek to control conduct, including the actions of foreign residents within their borders, whether related to employment, housing, or crime.

Nothing Arizona or any other state or locality has done along these lines runs counter to exclusive congressional authority over immigration policy – setting immigrant quotas, visa requirements, grounds for admission or exclusion from the country, per-country visa quotas, etc. In Arizona's case particularly, how can a state statute that merely codifies certain elements of federal law possibly be construed as establishing its own immigration policy or interfering with federal immigration laws? Rather, why has Justice sat on its hands instead of taking to court those localities that have enacted so-called sanctuary laws? How is it that sanctuary policies – which Congress has explicitly outlawed – don't create "a patchwork of state and local immigration policies" and "result in the non-uniform treatment of aliens across the United States?"

Second, the "federal government" does not have "the power to 'establish an uniform Rule of Naturalization;'" only the Congress does. This is plain from the fact that Article I of the Constitution relates to the powers the states vested in Congress. Not the president. Not the federal courts. Not unelected bureaucrats in the executive departments meeting in private with ACLU, MALDEF, and La Raza attorneys. Congress has given administrative offices limited discretion in carrying out immigration policy. Yet, the administrative and judicial branches continue to encroach on Congress's plenary power over immigration policymaking. DOJ continues that encroachment in its lawsuit, insinuating shared jurisdiction among federal branches. It's playing fast and loose with its wording.

Third, DOJ argues that Arizona's law "will conflict with and undermine the federal government's careful balance of immigration enforcement priorities and objectives." But there is no such "careful balance: in the Department of Homeland Security's "immigration enforcement priorities." At least there isn't in terms of deciding how best to carry out federal immigration laws in a conscientious manner. Those priorities are political decisions, just like DOJ's recent political decision to drop charges against the Black Panthers who intimidated voters outside a polling place in the 2008 elections.

The Bush administration had one set of immigration enforcement priorities immediately after 9/11, for instance, namely a focus on Middle Eastern terrorists. That administration continued the lax INS attitude toward more routine illegal immigration, even though repeated unlawful border crossing is a federal felony and evidence mounted that Islamists breached the porous U.S.-Mexican border along with illegal Mexicans and others. And the Bush DHS was exceptionally weak on workplace enforcement. It took two major, embarrassing defeats of Bush-pushed mass amnesties in 2006 and 2007 before that administration clued into the fact the American public vigorously opposes "comprehensive immigration reform."

The Obama administration has steadily gutted the strong enforcement measures the Bush DHS put in place toward the end of that administration. For example, the Obama DHS has vastly diminished the 287(g) law enforcement program and boosted the much less effective, more federally micromanaged Secure Communities program.

In short, Justice's politicized lawsuit against Arizona puts the administration in a curious position. The ludicrous proposition that the federal government would sue a state for exercising its rights in a manner carefully crafted to mirror relevant federal statutes should cause every American to question the judgment of this administration.