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DoJ to challenge AZ immigration law on “preemption”

Based in the Constitution’s “supremacy law”, the Obama administration will argue that federal law is supreme to state law.  In other words, the feds will argue that enforcing immigration laws is a federal responsiblity.

But that’s the rub isn’t it – it may be their responsibility, but they’re not fulfilling that responsibility to anyone’s satisfaction, especially the state of Arizona.  Consequently, Arizona has felt the need, based in public safety and budget concerns, to take matters into its own hands.

The preemption doctrine has been established in Supreme Court decisions, and some legal experts have said such a federal argument likely would persuade a judge to declare the law unconstitutional.

But lawyers who helped draft the Arizona legislation have expressed doubt that a preemption argument would prevail.

I’m not sure what those doubting whether the “preemption argument will prevail” mean.  Of course it will “prevail” if it is applicable. It has law and precedent behind it.  However, given the fact that the federal government has all but abandoned the enforcement of immigration law, and I think Arizona should be able to provide ample evidence of this, I’d suggest the preemption clause won’t be applicable since the laws aren’t being enforced.

In fact, I think Arizona can argue and make a pretty compelling case of federal nonfeasance concerning immigration laws.

In that case, this may very well blow up in the Obama administration’s face, and verify what most Americans already think – the government has no interest in enforcing the immigration laws on the books. 

Not exactly the meme you want out there with midterms approaching. Regardless of how this turns out, I’m finding it hard to see a “win” in this for the administration.



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40 Responses to DoJ to challenge AZ immigration law on “preemption”

  • given the fact that the federal government has all but abandoned the enforcement of immigration law, and I think Arizona should be able to provide ample evidence of this, I’d suggest the preemption clause won’t be applicable since the laws aren’t being enforced.

    Except this isn’t how pre-emption works.
    If the court finds that Federal immigration law pre-empts the Arizona law, then that’s the end of the game. The fact that Federal law is “not being enforced” or at least not being enforced to the satisfaction of the citizens of Arizona would be considered a political question outside the purview of the Courts.
    At the very least, I think the involvement of the Feds in the challenges to the law means that the law will not in fact take effect later this month. The Feds have requested an injunction pending a final determination of the Constitutionality of the law and I think the District Court Judge will be inclined to grant it.

    • As they pointed out over at HotAir, the fact that the DOJ & DHS have been training local and state police in immigration matters undermines most of this argument.

    • I guess my question is does AZ have any standing to sue the Feds over failure to enforce the law, given the consequences of that derelection of duty?

    • I fail to see how premption prevents a state from creating a copy of federal law, as long as the state law does not contradict federal law.

      If there was a conflict between the state and federal law, then federal law would overrule state law, but that is not the case here. The various sancuary cities are in violation of fed immigration law, however.

  • … it is filed …

    PHOENIX – The U.S. Justice Department on Tuesday filed a lawsuit challenging the constitutionality of Arizona’s new law targeting illegal immigrants, setting the stage for a clash between the federal government and the state over the nation’s toughest immigration crackdown.
    The lawsuit filed in U.S. District Court in Phoenix argues that Arizona’s law requiring state and local police to question and possibly arrest illegal immigrants during the enforcement of other laws such as traffic violations usurps federal authority.
    “In our constitutional system, the federal government has pre-eminent authority to regulate immigration matters,” the lawsuit says. “This authority derives from the United States Constitution and numerous acts of Congress. The nation’s immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests.”

  • I don’t think it has anything whatsoever to do with the legal merits of the case. It will be decided strictly on political grounds.  If they get this before a liberal judge then the Feds get their way, simple as that.
    And that will give them ammunition. I don’t see them being stupid enough to bring this up unless they were pretty sure of whatever left wing douchebag they have on the Federal Bench.
    Yes, I am cynical, why do you ask?

    • The real question left unasked is … “Where’s the Beef ?”
      Where is the argument against “possible profiling”  yada yada etc. ??

  • I think, having read the law, that a preemption approach is uncommonly weak.
    There are MANY complimentary laws that are perfectly supported under the “supremacy doctrine”.  It is commonplace for any attorney…civil or criminal…to look at overlapping laws to select which ones to use, and even to combine them.  This is true even in admiralty, which is clearly a Federal issue.
    Doug (above) makes sound points on the practical issues.  This will be about law, and only law.  The politics will be played out in the court of public opinion.  Good!
    I do not agree that an injunction is a walk-over here.  One criteria is the strength of the underlying case.  I have not seen the filing by DoJ, but I think this will cut in the state’s favor.

    • The case is assigned to Judge Neil V. Wake.
      Nominated by President Bush on Oct. 22, 2003, Mr. Wake had his hearing before the Senate Judiciary Committee on Jan. 22, 2004, and was favorably reported out of committee on March 4, 2004.

      A Phoenix native, Mr. Wake, 55, had been in private practice, specializing in commercial, administrative and constitutional litigation, appellate practice and Indian law. He served as a judge pro tempore on the Arizona Court of Appeals in 1985, 1992 and 1996-98, and is co-author of the Arizona Appellate Handbook.

  • As abysmally stupid as Arizona’s law is, the federal government should lose the case.
    The Constitution gives the federal government no power whatsoever to regulate immigration.
    In point of fact, it even included a 20-year ban on regulating a particular activity fraudulently described as immigration (slave importation) and a 20-year ban on amending that ban out of the Constitution.
    The federal power to regulate immigration wasn’t “discovered” until 1875 (by an activist Supreme Court, despite a super-abundance of evidence that the framers intended no such power and a complete absence of any evidence that they intended it), nor was it acted upon until 1882. It’s time and past time for that made-up power to be “un-discovered” so that said power returns to where the Constitution clearly and unambiguously places it (“reserved to the states or to the people”).

    • Well, you have a point or two regarding the authority under the Constitution for the Feds to control the borders.  There is none.
      What exactly do you find is “stupid” about the Arizona law?

      • This is one of those exceptions where technology changed the circumstances of the Founders.
        In the founder’s day, most people couldn’t immigrate to the colonies without an onerous expense and great risk.  Add to that there weren’t really any neighboring countries.  Just unclaimed territory and colonies.  I don’t think the Founders could have even imagined the scale of immigration possible.
        In fact, if you described to the Founders that millions of foreign nationals entered the country over the span of a few decades, they’d be asking what have we done to repel that invasion.
        Although by technicality is does belong to the States, it wouldn’t be long before one state is hijacked to become a revolving door for the rest of the country.  Its an item that does belong with the Federal Government, and I chalk it up to the Founders not having their crystal balls turned on to the advances in easy and safety of travel.

    • So, your position is that the Constitution specifically provides that Congress may ban the importation of certain persons after 1808, but that DOESN’T imply any power to regulate immigration. And that Congress specifically has the power to promulgate a uniform rule of naturalization, but no power at all to regulate how those naturalized persons come to the country in the first place.


      Got it.

      • Not trying to answer for Tomas, but you don’t suggest that naturalization and immigration are the same, do you?
        If there was no Federal power to control immigration for 20 years, where did it come from after that, when it had belonged to the states until then?
        Implicit powers are dangerous, don’t you agree?

        • Unfortunately that’s a moot question now. But FYI:

          What section of the Constitution gives Congress the right to govern immigration?

          It’s interesting; nothing in the Constitution says anything about immigration. But it goes back to the late 19th century, in which the power became vested in the general foreign affairs power. Part of the theory is that if you have a state offending a foreign country, it could lead to serious diplomatic disputes.

          And, of course, SCOTUS has upheld the immigration laws since – giving them defacto Constitutional cover.

          • But any such doctrine…made by the Supremes…can be vitiated by the Supremes.  Also, I see no valid offense to a foreign power.  The Mexican laws are far more draconian, and there is no express Mexican provision.  Ireland would have an equal claim.

    • The best argument (in the filing) in favor of “pre-emption” …

      In administering these laws, the federal agencies balance the complex – and often competing – objectives that animate federal immigration law and policy.

      … even if they ignore the wishes of Congress and ignore their Constituional mandate in …

      Article IV – The States Section 4 – Republican government
      The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

  • I’m still at a bit of a loss on the logic of the Feds passing a law, failing to enforce the law, then effectively banning the states from enforcing it.  Arguably, the fact the law exists is a stronger statement about the intention of the Feds than any amount of verbal discouragement from the executive.
    I understand this isn’t a perfect point, but I’m still sort of surprised to see this actually go to court; there aren’t a lot of ways this is going to turn out much better for the Feds than the status quo  (up to and including being visibly seen refusing to enforce laws the majority of the country agrees with, further and visibly undermining the rule of law; if you hate the federal law so much, why not repeal it? Yes, I know the answer to that question.), and there are a lot of ways a still-conservative Supreme Court could mess up the plans.
    (Unless this is a plan to whip up a pretext to pack the court, but that plan is running out of window, and isn’t a very good pretext.)

  • Don’t kid yourself- rule of law is dead under the Obama administration. This will be decided by some liberal judge on some ‘living rules’ made up by men in power. Down with tyranny, brother patriots.

  • McQBased in the Constitution’s “supremacy law”, the Obama administration will argue that federal law is supreme to state law.  In other words, the feds will argue that enforcing immigration laws is a federal responsiblity.

    1.  That The Dear Golfer and the Bagman aren’t trying to claim civil rights violations (profiling) indicates to me that they know that, despite their rhetoric, that claim is ridiculous on its face.

    2.  If the feds are trying to claim that only the federal government can enforce federal law, then does that leave the states at liberty to tell the feds to p*ss up a rope when they demand local / state assistance in enforcing state laws?

    This one will be going to the SCOTUS in a hurry.  Meanwhile, it seems to me that The Dear Golfer could hardly do more to damage not only his own reelection prospects, but also the electoral prospects of every democrat in the southwest.  Further, he’s going to so polarize the country AGAINST illegals that “immigration reform” (i.e. amnesty) will be a absolutely radioactive subject.  What the hell is he thinking???

    I don’t claim that this case will be the spark, but it sure seems certain to add powder to the keg of revolution.  Is THIS why the Constitution was written?  So that the federal goverment could sue states that try to to uphold the law?  Or that the federal government could tell states to STOP doing things to prevent their coasts from being fouled with oil?

  • We are at some risk of getting into the weeds on the root authority to even police immigration, so let us return to preemption.
    There is nothing in the Arizona law which is in conflict with Federal law.  The state law EXPRESSLY honors the Federal power to deport, hold on immigration violations, etc.  It compliments Federal law only.

  • This is an act of collusion between the Federal Government and a foreign invading Country, Mexico, who is instituting illegal forces against a State(s) that the Federal Government is sworn to protect.  This is a case of abandonment and treason at the highest level.

    It is what it is and I haven’t heard anyone yet talk about what should be the remedy to this “in your face failure” of the Federal Government. At the moment this suit was filed Representative government in the USA officially became nonexistent. 

  • The Supreme Court has ruled that the Congressional power to regulate naturalization, in Article 1, Section 8, includes the power to regulate immigration (see, for example, Hampton v. Mow Sun Wong, 426 U.S. 88 [1976]).
    The Constitution and common sense gives the federal government the power to regulate immigration, naturalization and foreign policy.  If a state could enact its own immigration policy, we could have fifty different policies.  That’s dumb and the Supremacy clause limits the power to our federal government.  It’s irrelevant if the federal policy isn’t enforced.  It’s irrelevant if a state doesn’t like the law.
    It would not make sense to allow Congress to pass laws to determine how an immigrant becomes a naturalized resident if the Congress cannot determine how that immigrant can come into the country in the first place.

    • What about the oath of office these politicians take? What about the sanctuary cities that are breaking Federal law and nothing is being done? At what point are these people responsible for not only their actions but inactions as well?

      Can the Supreme Court order us to give up our self defense and sovereignty? What’s the remedy?

      • And wouldn’t passing a law declaring their city a “sanctuary city” be “preemptive” as well? If so, isn’t going after AZ selective prosecution?

        • Far worse, McQ.  Consider; an ordinance by a city declaring itself to be a sanctuary, with policy to implement.  This is a direct conflict with Federal law, and law enforcement.
          Next consider Arizona; it will fine and/or jail illegal immigrants, and refer them to ICE for further Federal action.  It will also penalize employers and others who facilitate illegal immigration.
          There is no conflict of law; as I’ve been saying, the two codes are complimentary.  So called “field preemption” won’t fly…there has been cross-pollination between Federal and state players for decades.
          As to Brown’s question above, the Supreme Court is not the final arbiter of the Constitution.  That would be us, the people.

          • That would be us, the people.


          • Alas, the same ones who didn’t want HCR.

          • Witness the applause given to Felipe Calderon Hinojosa by the Democrats in Congress for his hypocrisy, the training given to the “illegals” by the Mexican Government on infiltrating US society, making the Muslims “feel good” ala “MASA” and many other examples. It is clear which side the Obama’s Federal Government is supporting.

  • “So, your position is that the Constitution specifically provides that Congress may ban the importation of certain persons after 1808”
    It does no such thing. It specifically FORBIDS Congress to ban the importation of certain persons before 1808, and it specifically FORBIDS amending the Constitution to get rid of that prohibition until 1808. Two specific prohibitions do not constitute a “specific provision” upon their expiration. They merely open the way for constitutional amendment upon their expiration.
    “And that Congress specifically has the power to promulgate a uniform rule of naturalization, but no power at all to regulate how those naturalized persons come to the country in the first place.”
    The Anti-Federalists, specifically Agrippa a/k/a John Winthrop, brought up this issue during the ratification debates, and those debates make it clear beyond reasonable doubt that the supporters of the Constitution wanted to leave immigration to the states.
    Furthermore, for nearly 100 years after the ratification of the Constitution, Congress understood its authority in EXACTLY those terms. It passed naturalization laws, but it didn’t pass immigration laws. The closest it came to passing immigration laws were laws allowing federal port officials to enforce STATE immigration laws, and assessing fees and fines to cover the cost of that enforcement, ships landing in Charleston with immigrants aboard in violation of South Carolina law could be stopped/denied, and their captains fined, by US customs officials.
    It was not until 1875 that the US Supreme Court miracled a federal power to regulate immigration into the Constitution, and it was not until 1882 that Congress exercised that power for the first time with the Chinese Exclusion Act.
    That’s  not “my position.” It is irrefutable historical fact.

  • Once the Supreme Court makes a decision on the Constitutionality of a given question, that is the law of the land.   We are a country of laws, not of historical (or hysterical)  facts.  Stare decisis obligates the Court in the future to follow prior precedent.  Unfortunately, from time to time, the Court’s members have ignored prior precedent.  This is certainly true for the current court’s Republican majority.  They have shown a consistent penchant for being judicial activists (which conservatives have loved when it favors their interests).  If you don’t like the current constitution, it can be amended by the will of the people.  (And this has happened over time — e.g. women can vote)

    • The ideology is noted, how about some reality. What remedies does the Constitution allow, for a Government who ignores their sworn oath and discards the Constitution on any whim that fancies them, a government that is selective in its prosecutions of the law and is clearly racist and anti-constitution to their core? What exactly does the Constitution and the USSC say we as citizens can do in that case?

  • The Constitution allows us the remedy of voting out politicians.  That is a powerful right, not available in most of the countries in the world.  However, the reality is we (the people) have allowed both political parties to be essentially the same (Republicrats or Demopublicans).   The current outcry by Republicans about spending and the growth of government is amazing.  For five of the eight years of the Bush administration, the Republicans had the majority in Congress.  The size of government and the deficit grew each year.  Bush holds the distinction of being the first President, since Adams, who failed to veto a single spending bill in his first four years.  Clearly, the democrats are no better.    I don’t think the sky is falling, we need to be better stewards of our citizenship.

    • I don’t think the sky is falling,

      Humph, guess you haven’t been outside lately.

  • In response to some earlier comments, the Constitution did not prohibit the federal government from making or enacting immigration law. (for a twenty year period)   A  compromise was reached between the slave states and the states that outlawed slavery, enacted as Section 9 of the Constitution.  It allowed states to continue importing slaves (Migration and Importation) and Congress could not bring the issue up for twenty years.  (They tried anyway, without success)   Of course, subsequently, the Constitution was amended to prohibit slavery.

    Section 9 – Limits on Congress

    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.