Yesterday the United States Justice Department filed its long awaited lawsuit against the State of Arizona and Governor Jan Brewer. The suit is aimed at overturning Arizona’s illegal immigrant law, known as SB1070. The law requires law enforcement in Arizona to question the citizenship of anyone reasonably suspected of being in the country illegally. It also makes being in the United States illegally a crime [trespass] in the state.
In its lawsuit, the federal government seeks to have Arizona’s law found unconstitutional and to enjoin enforcement of the law. The suit makes three claims, really four, against the Arizona law, though two of the claims are similar. First, the lawsuit alleges that Arizona’s law is contrary to the Constitution’s Supremacy Clause in two ways. Next it alleges that the law contravene’s federal authority under the Commerce Clause of the Constitution. Finally, it alleges that the Arizona statute violates the legal doctrine of federal pre-emption, an offshoot of the Supremacy Clause.
As a starting point, it seems unlikely that an injunction would be issued by the court prior to July 29, the date the law is scheduled to go into effect. This is not so much a legal issue as it is a timing and scheduling issue. The drafting and filing of initial, responsive and rebuttal briefs, time to review those briefs and independently research the law on the part of the court, scheduling and holding oral argument before the Federal District Court, then writing and filing a written opinion by the judge will not likely be accomplished in 22 days. Handicapping on an injunction prior to implementation: 50-1.
On the substantive law, the government raises two issues directly under the Supremacy Clause. Its first claim is that Arizona’s law will impose “significant and counterproductive burdens” on federal agencies that enforce federal immigration law and will divert “resources and attention from dangerous aliens.” The federal government claims that it focuses on such dangerous aliens and that Arizona’s law, which indiscriminately targets all illegals, will force a dilution of federal resources in the deportation process. Because the Arizona law has not taken effect, and its impact is yet unknown, the speculative nature of this claim does not bode well for it. Courts tend to treat speculative claims with disfavor. The Fed’s argument also relies on its implicit claim that it has the right to selectively enforce the law, rather than to enforce it [federal law] as written. Selective enforcement, sometimes called prosecutorial discretion, is not unheard of, but, combined with the speculative nature of the argument, raises serious questions about this approach. Handicapping on this claim: 20-1.
The second Supremacy Clause argument is that the Arizona law interferes with United States foreign policy and humanitarian concerns. While this appears to be a fall back argument, it may be the federal government’s best hope. There has already been foreign policy fallout, most notably in relations with Mexico. The Mexican government has issued travel warnings for Mexican citizens who might otherwise enter the United States legally through Arizona, and the Mexican government has officially protested the law. However, there is little proof of treaty implications or foreign relations implications beyond other governments’ dislike of the law. Handicapping on this claim: 5-4 (against the lawsuit).
The Commerce Clause claim is odd, at least logically. The law, of course, is not always logical. This claim is based on the federal government’s power to “regulate commerce with foreign nations, and among the several states…” Specifically, the lawsuit claims that Arizona’s law restricts the movement of illegal immigrants between states. The illogic of this position is that Illegals have no right to move between states, or be in the country for that matter, to begin with. The position of the Feds appears to be that it has the right to regulate, or permit, the interstate travel of those who have no right to be within the borders of the United States, much less in any given state. The other side of the argument is that the Commerce Clause, for at least 60 years, has proven a convenient catch-all for federal authority over the states. Handicapping on this claim: 30-1.
The pre-emption issue is based on the doctrine that some matters are of sufficient importance that federal law pre-empts state law and that any state law in that realm is necessarily invalid. While an interesting doctrine, it includes a long line of cases that permits state laws that are not in conflict with federal law. State drug laws are an example of laws that work with, and are not in conflict with, federal law on the same subject. Arizona will take the position that its law enhances enforcement of federal law and is written in such a way as not to be in conflict with federal law. Handicapping on the pre-emption claim: 30-1.
Seven days after signing SB1070 Governor Jan Brewer signed a series of amendments to the law. Those amendments were intended to blunt some of the obvious constitutional issues with the original bill, including racial profiling and ambiguous standards for law enforcement. With those deficiencies having been addressed, the law has been positioned to withstand “facial” constitutional scrutiny. Facial challenges are those based on the statute “on its face”, or as written.
Many legal scholars believe that the most meaningful challenges to SB1070 will not be facial challenges, but rather challenges that the law is unconstitutional “as applied”. Since SB1070 has not yet taken effect, how it will be applied is not yet known, and those lawsuits will have to wait for specific fact situations to arise.
Though I am clearly not a fan of SB1070, my final handicapping of the chances for success on the part of the federal government in its current lawsuit are 5-1 against, and would be worse but for the foreign relations implications raised by the Justice Department.
Cross posted at Elijah’s Sweete Spot.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.