The most stunning aspect of the Complaint filed by the Justice Department in U.S. district court is what’s omitted. Remember “Suddenly if you don’t have your papers and you took your kid out to get ice cream, you’re going to be harassed…” and “In the United States, no law abiding person — be they an American citizen, illegal immigrant, or a visitor or tourist from Mexico — should ever be subject to suspicion simply because of what they look like”? With all the talk about racial discrimination, there is no assertion of civil rights violations anywhere in the 26-page Complaint.
The lawsuit asks the court to “declare invalid and preliminarily and permanently enjoin the enforcement of S.B. 1070 … because S.B. 1070 is preempted by federal law and therefore violates the Supremacy clause of the United States Constitution.”
Really?
The Supremacy Clause provides that where the federal government has preeminent authority to establish laws, states may not establish or enforce their own laws that conflict with federal law. But the Arizona law tracks federal law and mandates its enforcement in the state of Arizona. AZ’s law is protected by the principle of concurrent enforcement, the idea that state law isn’t preempted if it prohibits the same behavior that is already prohibited by federal law. Courts, including the Ninth Circuit, have recognized this doctrine.
The idea that Arizona’s law is preempted by federal immigration policy makes sense only if federal policy is not to enforce U.S. immigration laws.
As a secondary Supremacy Clause claim, the Justice Department asserts that S.B. 1070’s mandatory enforcement scheme will “conflict with and undermine the federal government’s careful balance of immigration priorities and objectives…diverting resources and attention from the dangerous aliens who [sic] the federal government targets as its top enforcement priority. ” First, if the government is so focused on dangerous aliens, why are there warning signs instead of National Guard troops in Arizona’s recreation area near the border? Besides, is it the policy of the federal government to do nothing until illegal aliens actually commit violent crimes?
Furthermore, S.B. 1070 doesn’t diminish federal authorities’ ability to dispose of cases as they see fit, including “[declining] to exercise certain immigration sanctions or grant an otherwise unlawfully present or removable alien an immigration benefit…” as the Complaint alleges.
Finally, the Complaint alleges that S.B. 1070 somehow violates the Commerce Clause. The Justice Department didn’t attempt to make this argument, merely to provide an additional hook in case the court is looking for a way to invalidate the law. The Commerce Clause, which was intended to give Congress authority to break down barriers to commerce and trade among the states, has been used to justify all manner of federal regulation on the grounds that almost everything has potential to affect interstate commerce in some way. But this is a stretch.
The administration knows its arguments are weak and have no constitutional basis. The lawsuit is Obama’s attempt to placate the open-border crowd and Latino voters, although this may well be a miscalculation. Unfortunately, courts, especially at the appellate level, have become politicized, but any objective finder of law will conclude that S.B. 1070 passes constitutional muster.
Amy H Laff is a StateBrief.com partner. A graduate of Univ of Penn and Stanford Law School, Amy practiced law and mediation on the east coast before relocating to the Valley, where she founded and chairs the AZ chapter of the Republican Jewish Coalition. Amy makes frequent media appearances, including AZ Law Channel and Tony Katz Radio Spectacular. Additionally, she works with companies and candidates on branding and communication. 
This post is ludicrous and disingenuous. The tremendous potential for discriminatory enforcement is manifest–in fact, the atmosphere in this state already bears a toxic load of racial hatred. Why else would drivers feel license to hurl sickening racial epithets at young children working on a mural in Prescott??? (I saw that mural this weekend, btw, and it’s beautiful).
The US Government is simply and correctly asserting its rights and prerogatives under the Supremacy clause to not allow a single ( and sicko) state to interfere in what is clearly a federal matter involving foreign policy.
This intelligent application of law, if upheld, will thankfully spare children and families the quite unAmerican humiliation of being wrongfully accused and harassed simply because of the color of the skin.
Bravo, President Obama and AG Holder, for having the courage to stand up, in a most hateful political climate, for what is clearly right.
Thank you Amy…. you’ve cogently summarized this lawsuit and its weakness. Essentially, the Obama Administration are interested in the political ramifications instead of the legal considerations. For months, the administration charged SB 1070 as an invitation for racial profiling… that claim’s absence in the body of the lawsuit is an admission that the claim was erroneous.
What Mr. Rakowsky fails to acknowledge is that the federal law has withstood judicial/constitutional scrutiny for several decades. The supremacy clause should not be invoked as there is no intent for the Arizona law to REPLACE the Federal Law. Concurrent Enforcement applies.
The administration’s response to valid concerns about Drug Cartel encroachment in US territory is woefully inadequate.
To use Ms.Laff’s adjective in referring to the Justice Department’s Complaint, I find it ‘stunning’ that Mr. Rakowsky thinks that Arizona’s atmosphere “bears a toxic load of racial hatred.” He cites one incident as proof of his belief: drivers called out racial slurs to children working on a mural in Prescott. This is proof that EVERYONE in Arizona hates Hispanics? Does he forget or even know that Arizona as far back as the 1500′s had an influx of Spaniards who came with Coronado in their quest for exploration and silver? While these early conquistadors were not exactly benevolent to the native peoples, many, including Catholic missionaries remained in what is now Arizona. The descendants of these early Spanish contributed to the development of the territory along with the white men and women who came in the 1800′s. And so, Mr. Rakowsky, this state has a long history of peaceful co-existance between Anglos and Hispanics until our present President decided to turn things around for his political goals; you are just mimicking the racial accusations that Obama has spewed in reaction to 1070. This legislation is NOT racial on its face as evidenced by the Justice Department’s omission of any assertion of civil rights violations in its Complaint. If you thought with your brain instead of your misguided emotions, you would understand the facts that were presented by the author. If as the Complaint states that 1070 is preempted by federal law, why doesn’t the Administration enforce it? What is the point of having this federal illegal immigration law if it is not followed? The Supremacy Clause says that the states may not establish their own laws that conflict with the federal law. But as stated above, the Arizona law simply mirrors the federal law. Shouldn’t the Justic Department sue the sanctuary cities which have policies that actually conflict with federal law?? But no, that would conflict with Obama’s desire for the Hispanic vote which he desperately needs as his approval rating falls each day. Many of the vocal and abusive participants in the recent anti-1070 demonstrations were brought in from other states to give the appearance of racial unrest in Arizona. But contrary to Mr. Rakowsky’S assertions and the fear that the president has tried to inject, the majority of whites and Mexicans in our gorgeous state continue to work and play TOGETHER and appreciate the wonders of our precious Arizona landscape.
I love that “Honey” thinks the conquistadors and catholic missionaries co-existed PEACEFULLY with the native Hispanics. Adorable intentional ignorance. The truth of the matter is that this is a bad way to address a bad problem. Immigration needs to be kept under control, and I’m happy that the state is trying to step in where nothing had been done by the federal government. But this law, whether or not angry self-deluding white people want to believe it, creates an entire system of racial profiling. It’s not even that the law assists in it, the law pretty much is “it’s ok to profile, but please don’t.” I’m sure in your ideal little worlds the police will most definitely listen to the “please” part. It allows any law enforcement officer or CITY OFFICIAL (huh?) to stop any person who “looks illegal” and question them. On the street even. You don’t have to have any other reason than being brown. The justice department’s challenge is going to fail, because the law doesn’t violate the clauses that they claim it does. But you’re fooling yourself if you think it’s not going to be abused. It already has been. Research it a little. And while you’re at it, research the so called “Drug Cartel encroachment in US territory.” You’ll find it to be GROSSLY exaggerated so that Sheriff Joe can get some good PR. I hate illegal aliens, but I don’t see how questioning every Hispanic person you see is the right way to go about it. 70% of all DUIs are by men. The equivalent of this law would be to pull over any man you see driving to make sure he hasn’t been drinking. It just doesn’t make sense.
I am actually hopeful that in the process of this suit being litigated, other states will be encouraged to take similar actions to defend our borders. It is clear that the feds are not up to the job. In this political environment, only the most blue of states would not feel the heat to enforce at least the federal statutes.
This lawsuit is bogus at best. This Administration is doing nothing more than attempting to save some face. Rasmussen has done polls in AZ AND the US and the majority SUPPORTS AZ and it’s actions! I’m from AZ and I’m glad we finally have a Governor that has the balls (pardon the French) to stand up and do something this state has NEEDED for YEARS! The illegal immigrants will come over the border, pregnant, so they can have their child here. They then use that child’s SSN to draw off our Medicaid program (Ahcccs), food stamps, WIC and whatever else they can get. They don’t bother to learn the language or attempt to become naturalized! I have NO issues with immigrants who do it LEGALLY! My grand grandmother came through Ellis Island like so many others, she learned English, became a citizen, got married, had kids… everything asked of her to become an AMERICAN!
As for Mike, you do nothing but make yourself sound ignorant! I don’t know a single person, no matter their skin color, that has had an issue! I have seen a picket line… it was a group of illegal immigrants crying about their rights! They have no rights under our Constitution because they aren’t here LEGALLY! Who would have thought, ILLEGAL immigration isn’t LEGAL?!?! Seems like a no brainer to me! If they want rights, go through the steps!
The news did an interview on the 4th of July of a lady that had come here some years ago from Mexico. She’d come on a Visa and just kept renewing her Visa. Less than 6 months ago she decided to become a citizen. Less than 1000.00 later and 6 months of paperwork and an interview… she’s a citizen!!! So WHY are people paying these coyotes 3-5 grand (or more!) to bring them here illegally?
Again, adorably self-delusional. Apparently Mike is ignorant because he didn’t say whether or not he actually knows anyone who’s been harassed, but Amber is not ignorant because one time she SAW what she THINKS were illegals protesting something. I have 2 issues with your “most people like it so it should be a law” stance. First of all, this country was not founded on “most people like it.” Over 90% of voters in Southern states supported slavery, and then later supported segregating schools. These weren’t kept legal because they had support, they were overturned because it was the right and fair thing to do. Secondly, when I read the Rasmussen poll you were talking about I noticed a few things. The sample size was remarkably small, most of the people who supported the bill also support immigration reform not involving deportation (confused sheep much?), and (what I find to be the most tell-tale sign of the type of people driving the bill) more than half of the voters said that they were worried the bill would lead to racial profiling, but supported it anyway. I know that most people support it because they heard that most people support it. They go along with the group. Some people really do think it’s a good idea. Then, there’s the idiots who you see yelling at people in favor of SB1070. These people (I suspect Amber) get polled and say, “YES, I think it will victimize legal Hispanic-Americans, NO, I don’t care, and YES, I still support it.” It’s a sad time in AZ right now. You can lose your teaching job if your accent is to “ethnic.” Good luck trying to explain that law as anything besides racist.