Federal DOJ Sues to Stop Arizona Immigration Laws

On preemption grounds, reports the Washington Post:

The Justice Department filed suit Tuesday against Arizona, charging that the state's new immigration law is unconstitutional and requesting a preliminary injunction to stop the legislation from taking effect.

The lawsuit says the law illegally intrudes on federal prerogatives, invoking as its main argument the legal doctrine of "preemption," which is based on the Constitution's supremacy clause and says that federal law trumps statestatutes. The Justice Department argues that enforcing immigration laws is a federal responsibility.

But the filing also asserts that the Arizona law would harm people's civil rights, leading to police harassment of U.S. citizens and foreigners. President Obama has warned that the law could violate citizens' civil rights, and Attorney General Eric H. Holder Jr. has expressed concern that it could drive a wedge between police and immigrant communities.

Tons of Reason clips on Arizona's new laws aimed at illegal immigrants. Reason magazine's guide to a sensible, liberty-respecting immigration policy.

Comments

[Heroic Mulatto]

*sits back to watch the comment thread fill with batshit-insane, frothing at the mouth vitriol*

[MWG]

Pass the popcorn...

[-]

Yawn.

[Pro Libertate]

Aren't there federal laws on the books that are pretty close to the Arizona law? If so, this is interestingly dangerous ground for the administration to tread upon.

[PapayaSF]

And I believe other states (e.g. Missouri) have similar laws on the books.

[PapayaSF]

Will the DoJ be suing Rhode Island, too?

[MikeP]

I don't know. Is Rhode Island actually fining and imprisoning illegal aliens for violating a state crime? No?

Then the DoJ probably isn't suing Rhode Island.

[Irwin Mann]

Arizona's controlled substances laws are word for identical to the federal Controlled Substances Act, should Arizona repeal it's law so as to not interfere with the federal jurisdiction?

[Richard]

I'm just not getting how this is a pre-emption issue. Arizona's law only affects people violating federal immigration law. I don't see why a state can't have a law that's more strict than the federal counterpart.

The DOJ is also asking the law to be struck down because it MIGHT lead to harassment of U.S. citizens or foreigners. Yeah, so might any other law. Everything depends on which judge you draw, but I'm just not seeing it.

[Just Dropping By]

Arizona's statute purports to make it a state crime for an individual to be in violation of a federal law in a subject area that Arizona has no power to regulate (see the quoted language from the Kleindienst v. Mandel decision in my response to R C Dean below). States can't make an end-run around federalism by passing laws imposing state criminal penalties for violations of federal law. The states have to have their own authority to regulate the subject matter.

[R C Dean]

If the arguments are made competently, the Supremacy Clause end of this will be interesting.

The Constitution specifically vests both the States and the Feds with authority to regulate immigration, after all. The feds only have exclusive jurisdiction over naturalization. That's going to complicate the preemption argument considerably.

Also complicating it is that preemption generally applies only to invalidate state laws that conflict with federal laws (leaving the "dormant Commerce Clause" aside). I'll be fascinated to see what conflicts the feds allege.

And it is bizarre, to say the least, that the feds are arguing that a state law that is functionally identical to federal law in many respects is a violation of civil rights.

[bubba]

This is an extension of you can trust Obama with those powers because he won't use them. Those racist Arizonans, on the other hand...

[Just Dropping By]

The Constitution specifically vests both the States and the Feds with authority to regulate immigration, after all.

What precise clause of the Constitution says the states have authority to regulate immigration? Because the Supreme Court has been very clear for the past 100+ years that the regulation of immigration (not to be confused with regulating domestic employers/landlords/etc. in their dealings with immigrants, which is acceptable) is exclusively a federal subject.

From Kleindienst v. Mandel, 408 U.S. 753, 765?66 (1972) (footnote omitted; emphasis added):

In accord with ancient principles of the international law of nation-states, the Court in The Chinese Exclusion Case, 130 U.S. 581, 609 (1889), and in Fong Yue Ting v. United States, 149 U.S. 698 (1893), held broadly, as the Government describes it, that the power to exclude aliens is "inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers ? a power to be exercised exclusively by the political branches of government . . . ." Since that time, the Court's general reaffirmations of this principle have been legion. The Court without exception has sustained Congress' "plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden." Boutilier v. Immigration and Naturalization Service, 387 U.S. 118, 123 (1967). "Over no conceivable subject is the legislative power of Congress more complete than it is over" the admission of aliens. Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909). In Lem Moon Sing v. United States, 158 U.S. 538, 547 (1895), the first Mr. Justice Harlan said: "The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications."

[R C Dean]

Art. 1, Sec. 8, powers of Congress, mentions only naturalization, not immigration:

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Art. 1, Sec. 9 contains the sole mention of immigration in the Constitution, and clearly contemplates that the States have authority over immigration:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The case you cite above is consistent with the power of Congress, after 1808, to prohibit immigration. However, SCOTUS is being a little naughty in saying that the feds have exclusive/plenary power of immigration as well as naturalization.

The Constitution clearly contemplates State authority over immigration into their State. Indeed, that is the very clause that allowed the Northern states to prohibit the slave trade before the Civil War.

[Just Dropping By]

Leaving aside the point that clause 1 of Article, Section 9 has been traditional understood to apply only to slavery, Arizona still can't rely on it. Read it closely - "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight...."

Arizona is not a state "now existing" at the time of the ratification of the Constitution (1789). Live by strict constructionism. Die by strict constructionism.

[Just Dropping By]

Sorry, that should read "traditionally understood to apply only to the importation of slaves".

[Irwin Mann]

Illegal aliens might as well be slaves.

They are trafficed, bought and sold by the coyotes.

If you oppose 1070 you favor enslavement of illegal aliens.

[MWG]

That's an interesting interpretation of 1070... of course you'll find nothing in the actual law that even touches on the "enslavement of illegal aliens" by coyotes.

[MikeP]

Illegal aliens might as well be slaves.

They are trafficed, bought and sold by the coyotes.

I'm gonna guess that your solution to this problem isn't to make illegal aliens legal.

[Robert]

I don't see how you get from the non-existence of Ariz. at that time to their not having the authority to admit such persons as they think proper at this time. The provision was a limitation only on the power of Congress, not of any present or future state.

And how can it apply only to slaves, when it says "Migration or Importation"? Clearly that means to cover cases both of persons being brought as property and persons entering voluntarily.

[Just Dropping By]

As a threshhold condition to continuing this exchange, point me to any holding by a federal court supporting your interpretation of the Constitution as granting states the power to regulate foreign immigration (and, note, the power to regulate domestic employers/landlords in their dealings with immigrants is not the same as claiming the power to criminally prosecute immigrants for violations of federal law). I've quoted explicit U.S. Supreme Court authority on the subject. There's not much point in continuing the conversation if all you're doing is pulling arguments out of your ass.

[James Anderson Merritt]

Well, there isn't much point in continuing this exchange if you believe that "so say we all (or at least five of us do)" is sufficient basis for law. The point of Supreme Court opinions is to explain the rational, legal basis for their decisions -- and the fundamental basis must always be the text of the Constitution (as exemplified by the process of judicial review). The problem with the supposed federal immigration authority is that no such explanation was ever offered, nor did the justices even feel obliged to offer one. They just made the nakedly arbitrary, extra-constitutional declaration that there were non-enumerated powers inherent in sovereignty, and that the Federal government was the only agency that could exercise such powers. End of story. Of course, later courts would cite earlier court cases, or specific federal legislation, as basis or precedence for THEIR decisions. But, if they lead anywhere at all, all such citations always come back to "because WE say so," NOT to "because the Constitution says so."

The "exchange" is worthwhile for the same reason that discussion of the 2nd Amendment's wording was worthwhile in the years before Heller. Someone has to shine a light on mis-interpretation, arbitrariness, willful misrepresentation, or other forms of infidelity to the Constitution as written (not to mention infidelity to the idea of limited Constitutional government).

In affirming federal immigration authority, earlier Supreme Courts got it wrong not just because they ruled in ways I didn't agree with, but because the fundamental ruling didn't cite any constitutional basis AT ALL -- it, in effect, declared that the Constitution did not apply. That was the unarguably wrong part. The Constitution was intended to establish a government of limited, explicitly declared authority and powers. The unlimited, unspecified rights and powers belonged to the States or people. If there is a whole class of powers that are "inherent to Sovereignty," with the US has and can exercise without the necessity of them being provided for in the Constitution, then this defeats the whole purpose of our system of government. We KNOW that this is not was intended (or at least promised) by the Founders. So, if we want to retain that system of government -- and I would like to -- we cannot let ambiguities like this stand. Either amend the Constitution or do as it says (and nothing more).

[James Anderson Merritt]

In speaking of the Heller decision above, I forgot to add that, eventually, after the arbitrariness or inconsistency has been in the spotlight long enough, people in power may finally be persuaded to acknowledge it and do something about it. The Heller decision corrects years of lower-court mistakes (and may eventually prove fundamental in correcting years of legislative mistakes). I am hopeful that, if enough light is shone on the immigration authority situation, mistakes in that area can eventually be corrected, too. We'll see.

[Fluffy]

This clause was used to allow the states to continue to import slaves without restriction until the date cited in the clause. The southern states feared that the slave trade would be stopped, and the compromise reached was to give them a window of time where the continued slave trade would be guaranteed.

Even if it could have been applied to normal immigration prior to that date, we're clearly AFTER that date now.

[James Anderson Merritt]

The Constitution's 10th Amendment doesn't seem to leave much room for "powers inherent in sovereignty." The Constitution (Art I, Sec 9) also affirms that States were accustomed to handling their own immigration up until the ratification of the Constitution. Yet the power over immigration is not explicitly, positively given to Congress, as is the power to make the naturalization process uniform, or the power to regulate foreign commerce, for example, both of which are cited in the complaint.

Where in the Constitution is another power, much less one so important and "inherent" to Sovereignty, defined in the negative? Can the authority to DO something be fairly inferred, absent any other directly relevant statements or clues, from the expiration of an explicit DENIAL of authority to do something?

Simple crossing of borders with no intent to do harm OR become a US citizen does not properly fall under the category of "naturalization." Can merely crossing a border and being present in a place be fairly construed as "commerce with foreign nations"? (Yes, I know it can be and has been so "construed"; I did also say "fairly.")

The DOJ complaint doesn't seem to point to relevant passages of the Constitution to support its case. As far as the primacy of federal law over State law, that only counts when Federal law is constitutional. Unconstitutional law is no law at all. For the constitutionality of Federal immigration authority, we can rely only on the mutually self-reinforcing decisions of the Supreme Court since the Chinese Exclusion Case, in which reasoning by analogy was used to "find" federal immigration authority. The thinking went like this:

Sovereign nations can, due to the nature of sovereignty, control their borders and expel foreigners. The US is a sovereign nation. To the extent that the US exercises its sovereign authority, it does so through the Federal government. Therefore, the Federal government is the only proper and competent repository of the power to control borders and expel foreigners. Therefore, immigration authority belongs to the Federal government.

Look up the opinion. Read it yourself, if you think I have mis-paraphrased.

The "analogy" part, I think, is in likening the US to other Sovereign nations. That is to say, sure, a garden variety sovereign nation might have this or that power or authority, but if it isn't covered by the Constitution, the US doesn't have it, and even Constitutionally granted authority must be exercised in the context of the enumerated powers and the necessary and proper clause. We are not like other nations. Theoretically, at least, we voluntarily leave on the table power and authority that other nations grab with gusto. As far as I can see in the Constitution, immigration authority was one of those things. It's easily solved, via Constitutional Amendment. Let me analogize (fairly) to Prohibition. In pushing for Prohibition, earlier generations realized that they were proposing a new Federal authority, and they properly amended the Constitution to provide for it -- then later repealed it. But for Prohibition II (aka, the Drug War), no such formalities were followed. The Drug War is unconstitutional no matter how many Supreme Court decisions affirm it. Similarly, Federal immigration authority is presently unconstitutional, no matter how often you hear "because we say so" from the Supreme Court. If you want the Federal government to "own" immigration authority, the right and proper thing to do is to amend the Constitution, so as to make all the extra-constitutional smoke-blowing and hand-waving unnecessary. Allowing the Federal government to claim this authority when there really is none is as fundamental a rejection of rule-by-law as allowing them too prosecute the Drug War. Allow either, and you strike heavy blows to our Constitutional system. Why, when the Amendment process is available? On the other hand, maybe letting the States deal with immigration themselves will prove to be the better approach, and we may find no need to amend the Constitution.

[MikeP]

James Anderson Merritt does a great job going into the fundamentals of constitutionality. But, regardless, all evidence indicates that Section 9's prohibition of future slave import in no way gives Congress authority over immigration.

The greatest evidence is found in Tucker's Blackstone on this clause as well as on naturalization, but certainly Madison himself in Federalist 42 as much as made fun of the argument that this clause has anything to do with prohibiting free migration.

The most telling evidence, however, is the Confederate Constitution. Yes, I know it is not a document with any legal standing. But given that it is almost identical to the US Constitution, those places where it actually differs say a lot. In particular, the CS Constitution doesn't get the vapors and fall to euphemism when it discusses slavery:

The importation of negroes of the African race from any foreign country other than the slaveholding States or Territories of the United States of America, is hereby forbidden; and Congress is required to pass such laws as shall effectually prevent the same.

[James Anderson Merritt]

"the CS Constitution doesn't get the vapors..."

The CS Constitution isn't overcome with flatulence...???

Another great "compare and contrast" exercise is to hold the Constitution of 1787 up against the original US Articles of Confederation. Under the Articles, States retained much more sovereignty, including immigration AND naturalization authority. The latter would be similar to Spain or Greece retaining their unilateral abilities to naturalize new Spanish or Greek citizens, respectively, and having such new citizens also enjoy all of the privileges and immunities of the EU.

Under a Constitution like ours of 1787, however, Greece and Spain could let in whomever they pleased, but none of those immigrants could become US citizens without following a process approved by the Federal government.

Under our Constitution as SUPPOSED by altogether too many people, unfortunately, Spain and Greece couldn't let anyone in without approval from Brussels.

[James Anderson Merritt]

"...but none of those immigrants could become US citizens..."

Sorry that should be "...but none of those immigrants could become EU citizens..."

[James Anderson Merritt]

Thanks for bring up Federalist 42. Here is the money quote regarding Article I, Section 9: "Attempts have been made to pervert this clause into an objection against the Constitution, by representing it ... as calculated to prevent voluntary and beneficial emigrations from Europe to America."

Europe to America, Asia to America, Mexico to America, whatever. Federalist 42 makes it clear that Article I, Section 9's sunset clause on the power to prohibit the importation of slaves (an act of commerce with foreign nations!) is NOT the positive affirmation of a general authority or power to prohibit/control immigration.

[Jeffersonian]

I think you are conflating the power of Congress to make laws as regards immigration and the power of states and other political subdivisions to enforce immigration law. There is nothing in the AZ law that contradicts federal law (by design), and it specifically supports federal efforts to enforce federal law.

In fact, bizarrely, one of the complaints in the federal suit against AZ is that the AZ law allows civil actions against political subdivisions that refuse to enforce or actively support contravention of federal law!

[bubba]

I thought the primary effect of Arizona law is to turn over illegal immigrants to the Feds.

Pre-emption would allow the Feds to decline to prosecute, not bar Arizona from turning them over.

But if it's politically inconvenient, it's unconstitutional?

[Bean Counter]

Well, duh! "Unconstitutional" is just another word for "We don't like it". Also, it's always fun to watch people who supposedly champion property rights froth at the mouth about attempts to stop violators of federal immigration law from completely ignoring the property rights of those who have the misfortune to live in the path between immigrants and their desired destination. Apparently, it's an affront to the constitution when the government takes or harms the value of my home or store, but perfectly ok to let thousands of people squat on my ranch if it happens to be on the border. The "Greater Good", don't you know. Again, "Unconstitutional" is just another word for "We don't like it".

[MikeP]

Not at all. If it were simply handing suspects over to the feds, it wouldn't be half as egregious. It creates a brand new state crime with brand new state punishments.

13-1509. Willful failure to complete or carry an alien registration document...
A. In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 United States Code section 1304(e) or 1306(a).
...
D. A person who is sentenced pursuant to this section is not eligible for suspension of sentence, probation, pardon, commutation of sentence, or release from confinement on any basis except as authorized by section 31-233, subsection A or B until the sentence imposed by the court has been served or the person is eligible for release pursuant to section 41-1604.07.
E. In addition to any other penalty prescribed by law, the court shall order the person to pay jail costs. and an additional assessment in
the following amounts:
1. At least five hundred dollars for a first violation.
2. Twice the amount specified in paragraph 1 of this subsection if the
36 person was previously subject to an assessment pursuant to this subsection.

[?]

Aren't there federal laws on the books that are pretty close to the Arizona law?

The AZ law is an encouragement to AZ cops to send violators of federal law to the feds for prosecution, and a description of when and how they should do it. It's barely even a law. The whole production about it is utter bullshit.

The Libertarian? argument for a preemption that privileges federal selectiveness in enforcement over a state's lesser selectiveness in enforcement re: the same law should be funny?especially in light of the bullshit they made up to defend states' "medical marijuana" laws from federal preemption, back when allegiance to TEAM BLUE! preempted principled opposition to the drug war.

[Tman]

The funniest part about all of this is that the Obama admin can't help but look hypocritical by selectively utilizing the pre-emption argument for this particular law, but not for others ie., Medical Marijuana.

[PapayaSF]

And, of course, they'll defend California's unique auto emissions laws.

[Sudden]

Fuck, thanks for reminding me I have a smog test coming due next month.

[hmm, here to please]

batshit-insane, frothing at the mouth vitriol

Some more batshit-insane, frothing at the mouth vitriol. But, batshit-insane, frothing at the mouth vitriol. You can not discount the batshit-insane, frothing at the mouth vitriol. If you love America you would spew lots of batshit-insane, frothing at the mouth vitriol. Finally kiss my batshit-insane, frothing at the mouth vitriol.

[Heroic Mulatto]

Thank you.

[Ben P.]

I dunno. I think there could have been a little bit more batshit-insane, frothing at the mouth vitriol here. But overall, I give it an 8.5.

[ChrisO]

In the 9th Circuit, the feds would probably have better luck with some touchy-feely Equal Protection argument than with preemption doctrine, given the lack of conflicting language in the statute.

[Just Dropping By]

The complaint details at length how the Arizona statute conflicts with multiple federal immigration statutes and regulations.

http://www.justice.gov/opa/documents/az-complaint.pdf

[T]

Okay, I'm not a lawyer. But every time Joe Citizen alleges the Congress has passed an unconstitutional law, he has to have been directly affected by the law in order to have standing to sue. Does the fedgov get to skip that annoying rule? Is it one of those things that only applies to us plebes? I don't see how the feds have suffered any harm from Arizona enforcing the feds rules.

[PapayaSF]

Of course they haven't suffered any harm (other than potentially having more illegals to deport). This is political/ideological grandstanding. The DoJ clearly doesn't believe in equal protection under the law (see the New Black Panthers case), they believe in rooting out any "white oppression."

[R C Dean]

My prediction:

(1) The civil rights argument will crash and burn. The law is too well drafted for an a priori civil rights challenge.

(2) The state isn't establishing any new standards for immigration (that is, no new definitions of who is a legal v. illegal immigrant), so the Supremacy/preemption argument should be a loser. Who knows what SCOTUS will pull out of its ass on something this abstruse, though.

(3) The argument that only the feds can enforce a federal law is very interesting, and potentially dangerous. It essentially means that anything the feds have jurisdiction over, only the feds are allowed to legislate about (unless they magnanimously grant permission to the states to put in place a few trifling rules of their own, of course). That's not a slippery slope, that's a greased cliff.

[PapayaSF]

Isn't threatening the President a federal law but not a state one? And treason? And various trading-with-the-enemy/export restrictions? So I guess state law enforcement shouldn't do anything in those cases.

[BeesInTheBrain]

(3) The argument that only the feds can enforce a federal law is very interesting, and potentially dangerous.
Funny, if they win that arguement I can't wait for the justification of state and local taxes.

[Tulpa]

Considering that, according to SCOTUS, the federal govt has authority to regulate basically anything via the Commerce Clause, that would render nearly every state law on the books unconstitutional.

[(Not) David Weigel]

I am a libertarian, but Doherty's idea that people should be free to cross borders with minimal government harassment is completely insane. I hope he gets hit by a car.

(I apologize for these posts, but I can't help it. I am in love with the Weigelian construct; it is genius, pure.)

[Ratfucker Deluxe]

I don't know if it's illegal for state governments to deny state benefits because of federal violations, but everyone who didn't vote for both Ron Paul and Barack Obama should seriously consider setting themselves on fire.

[(Not) David Weigel]

Here's the Weigelian sonnet form in outline:

1. Claim to be a libertarian
2. Take some outrageously unlibertarian position
3. Call people who disagree retarded or insane
4. Threaten bodily harm

I wish I thought of it first.

[Ratfucker Deluxe]

It looks like they hired him over at MSNBC now?!

What's he gonna be, MSNBC's answer to Tucker Carlson?

Who the fuck wants to be that?!

I'd rather be a ratfucker. I have to say it's been an amazing source of amusement. Yesterday, the New York Times weighed in. Then the Wall Street Journal had to put their two cents in about the Weigel situation.

...you'd think it would wear itself out, but it just keeps getting funnier!

[hmm]

I want to see this voting maneuver backfire on him. I would love to see the majority white democrat voting blocks stand against this. Leaving the democrats with nothing more than the Hispanic vote.

What a fun little game he's playing.

[PapayaSF]

Part of the Hispanic vote. Not all of them are thrilled with illegal aliens.

[hmm]

As a bloc the majority favor some sort, or any sort, of immigration change.

Of course, this doesn't deal with individuals, but blocs of ideologies and voters.

[Robert]

What do you suppose is the US admin.'s motiv'n in this?

[hmm]

Securing the Hispanic voting bloc while not having to worry about losing too many from the white liberal voting bloc.

This is 100% a play for the November elections.

[Michael Ejercito]

Securing the Hispanic voting bloc while not having to worry about losing too many from the white liberal voting bloc.

What about the anti-illegal-alien voting bloc?

How do they avoid alienating too much of the anti-illegal-aliens?

[hmm]

I'm guessing that bloc is lost all together and written off. You start with those you can get and use that as the center point. I'm guessing the anti-immigration people are so far to one of the scale they don't matter.

[hmm]

It's also a damn near slam dunk no matter how the case turns out. The only wild card will be any mistake in judging how far the liberal voting bloc will move and to what degree. Hence, the reason I think it would be awesome to see a unified shift on that blocs part away from Obama due to this suit.

[Will]

Same crap always happens. Has anyone seen the documentary, farmingville? Illegal immigration is a problem that has no solution. Because whenever someone does something about it, people stop it. In farmingville for instance, the city tried to do something to get illegal immigrants documentation to work, and a higher power shuts them down...

[TheOtherSomeGuy]

How can the Federal Government sue the State of Arizona for trying to enforce existing Federal law, then turn around and sue people who hire illegals for not enforcing those laws on their own?

[TheOtherSomeGuy]

Why is it ok to make employers check for citizenship, but not ok to let the cops do it?

[Ebeneezer Scrooge]

Because Arizona didn't say "Mother may I?"

[Barack]

That's "mutha," cracka.

[Hacha Cha]

This law will affect legals as much as it will illegals. This law should be challenged on 4th and 5th amendment grounds. I haven't heard anyone else bring this up, its so obvious, why the hell aren't more people pointing out this violates the 4th and 5th amendments (and the Arizona constitutions equivalent 4th and 5th amendment protections)?

[quickly . . . .]

that's b/c the answer is equally obvious if you take a minute to look. an individual must sustain actual injury as a result of the statute to have standing to bring a challenge on those grounds. it'll happen at some point, but it's premature for now.

[R C Dean]

Nice discussion above about the power retained by states over immigration. Kind of beside the point, though.

Arizona isn't claiming any kind of authority over immigration. Its not passing any laws that try to control immigration. Its law is purely about how the state will go about enforcing federal law.

To win this argument, the feds are going to have to show that a state enforcing federal law as written is somehow an infringement on federal supremacy. That's a tough sell. Keep in mind that Arizona isn't even fully enforcing federal immigration law - its not actually prosecuting or deporting anyone, merely referring them to, yes, the feds. How is making a referral to the feds an infringement on fed authority, exactly?

If AZ can't do that, then how can any state make a referral to the feds of anyone that they think might be breaking federal law?

[Jeffersonian]

Yeah, Holder's playing with fire here. I'd laugh myself silly if he won this case and suddenly discovered hundreds of thousands of state and local police refusing to refer drug, weapons, cases to his Department on the grounds that it's their fucking job to uncover and prosecute those crimes.

[MikeP]

As many keep reminding us -- see above -- a number of states have laws referring people suspected of violating federal law to federal authorities.

Arizona's law goes well beyond that. It makes illegal residence a state crime with state punishments and gives anyone the ability to sue local authorities who shirk its enforcement. You may agree or disagree, but this is not enforcing federal law or simply remanding suspects to federal care.

[James Anderson Merritt]

"Nice discussion above about the power retained by states over immigration. Kind of beside the point, though.

"Arizona isn't claiming any kind of authority over immigration. Its not passing any laws that try to control immigration. Its law is purely about how the state will go about enforcing federal law."

In other threads, I have criticized the AZ law for going along with the "we say so" mistake of assuming that the unenumerated immigration authority belongs to the Federal government. But I do think that AZ is right to assert its own authority to at least participate in the immigration issue, even if I don't approve of how they are doing it.

[MikeP]

This issue does tend to yield some conflicted comments.

I am perfectly able to argue that immigration is a power the Constitution puts in the hands of the states, not the federal government. Yet I also recognize that an amendment to federalize that power would be ratified 90 days after hitting the floor of Congress.

I find the Arizona law obnoxious. But I also find that the US has no legitimate case in its suit over the law, at least until such amendment is passed.

Nonetheless, I have a feeling that two government jurisdictions' fighting over who will do a better job of abrogating fundamental freedoms can't lead to much good.

[?????]

thanks