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Feds sue Arizona over SB 1070

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Feds sue Arizona over SB 1070

Justice Dep't asks immigration law be declared unconstitutional

  • An anti-1070 sign at an immigration rally in Washington, D.C., on May 2.
    Arasmus Photo/FlickrAn anti-1070 sign at an immigration rally in Washington, D.C., on May 2.

Saying SB 1070 "attempts to second guess federal policies," the Justice Department filed a lawsuit Tuesday challenging the constitutionality of Arizona's new anti-illegal immigration law.

The state "crossed a constitutional line" when it enacted the law, Justice said in a press release.

The federal government maintains that SB 1070 "disrupts federal enforcement priorities and resources that focus on aliens who pose a threat to national security or public safety," and "conflicts with and undermines" national immigration policies, the suit says.

The brief filed in the case says the government seeks to "declare invalid and preliminarily and permanently enjoin the enforcement of S.B. 1070."

The feds requested a preliminary injunction to stay enforcement of the law. Saying "the power to regulate immigration is exclusively vested in the federal government," Justice asked the U.S. District Court to delay SB 1070 until after the lawsuit is decided.

"It is wrong that our own federal government is suing the people of Arizona for helping to enforce federal immigration law," Gov. Jan Brewer said in a statement.

"The truth is the Arizona law is both reasonable and constitutional.  It mirrors substantially what has been federal law in the United States for many decades. Arizona’s law is designed to complement, not supplant, enforcement of federal immigration laws," Brewer said.

SB 1070 is an "impermissible effort by Arizona to establish its own immigration policy," the suit says.

Arizonans are "understandably frustrated with illegal immigration," said Attorney General Eric Holder in a statement.

"But diverting federal resources away from dangerous aliens such as terrorism suspects and aliens with criminal records will impact the entire country's safety,'' the statement said.

"Setting immigration policy and enforcing immigration laws is a national responsibility,'' Holder said. "Seeking to address the issue through a patchwork of state laws will only create more problems than it solves.''

Homeland Security Secretary Janet Napolitano pointed out that as governor of Arizona she vetoed similar bills.

"They would have diverted critical law enforcement resources from the most serious threats to public safety and undermined the vital trust between local jurisdictions and the communities they serve,'' she said.

The Department of Justice, Department of Homeland Security and State Department have joined the suit.

SB 1070 is scheduled to take effect July 29, but enforcement may be delayed by a judge, pending the outcome of the many lawsuits against the measure that have been filed.

The law requires police to determine the immigration status of suspects they believe are in the country illegally. It also requires law enforcement to determine the status of everyone who is arrested, regardless of whether there is "reasonable suspicion" about their immigration status.

President Obama addressed the law in a speech on comprehensive immigration reform last week.

"As other states and localities go their own ways, we face the prospect that different rules for immigration will apply in different parts of the country," he said. "A patchwork of local immigration rules where we all know one clear national standard is needed."

The suit

The government maintains that SB 1070 violates the supremacy clause of the U.S. Constitution, which says that federal laws override state statutes. Although it is already a federal crime to be in the country illegally, the Arizona law sets out more stringent enforcement policies and punishments.

"S.B. 1070’s provisions would subvert and interfere with federal immigration laws and objectives; the law is therefore preempted," the 58-page injunction request says.

The brief, written by Assistant Attorney General Tony West, head of the civil division of the Justice Department, says "the federal government has preeminent authority to regulate immigration matters.  This authority derives from the United States Constitution and numerous acts of Congress."

Although states may exercise their police power in a manner that has an incidental or indirect effect on aliens, a state may not establish its own immigration policy or enforce state laws in a manner that interferes with the federal immigration laws.  The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country.


The United States understands the State of Arizona’s legitimate concerns about illegal immigration, and has undertaken significant efforts to secure our nation’s borders. The federal government, moreover, welcomes cooperative efforts by states and localities to aid in the enforcement of the nation’s immigration laws.  But the United States Constitution forbids Arizona from supplanting the federal government’s immigration regime with its own
state-specific immigration policy – a policy that, in purpose and effect, interferes with the numerous interests the federal government must balance when enforcing and administering the immigration laws and disrupts the balance actually established by the federal government.  Accordingly, S.B. 1070 is invalid under the Supremacy Clause of the United States Constitution and must be struck down.


S.B. 1070 (as amended) attempts to second guess federal policies and re-order federal priorities in the area of immigration enforcement and to directly regulate immigration and the conditions of an alien’s entry and presence in the United States despite the fact that those subjects are federal domains and do not involve any legitimate state interest.  Arizona’s adoption of a maximal “attrition through enforcement” policy disrupts the national
enforcement regime set forth in the INA and reflected in federal immigration enforcement policy and practice, including the federal government’s prioritization of enforcement against dangerous aliens.  S.B. 1070 also interferes with U.S. foreign affairs priorities and rejects any concern for humanitarian interests or broader security objectives, and will thus harm a range of U.S. interests.  Thus, because S.B. 1070 attempts to set state-specific immigration policy, it legislates in an area constitutionally reserved to the federal government, conflicts with the federal immigration laws and federal immigration policy, conflicts with foreign policy, and impedes the accomplishment and execution of the full purposes and objectives of Congress, and is therefore preempted.

"Assuring effective enforcement of the provisions against illegal immigration and unlawful presence is a highly important interest,'' the lawsuit says. "But it is not the singular goal of federal immigration laws."

According to the brief, federal laws also take into account "uniquely national interests'' like facilitating trade and commerce, welcoming foreign nationals who visit or immigrate lawfully and ensuring their fair treatment, responding to humanitarian concerns "and otherwise ensuring that the treatment of aliens present in our nation does not harm our foreign relations with the countries form which they come or jeopardize the treatment of U.S. citizens abroad.''


Tucson's chief of police, Roberto Villaseñor, filed a supporting declaration with the federal suit.

"The new law remove (sic) my ability to provide guidance and direction to officers as to what is practicable during the course of prioritizing investigations involving an immigration component," Villaseñor wrote.

"My concern is that these laws amount to an unfunded mandate that impose a Federal responsibility on local law enforcement," the chief wrote. "The impact of illegal immigration on Arizona's well-being cannot be denied. But to require local police to act as immigration agents when a lack of local resources already makes enforcing criminal laws and ordinances a challenging proposition, is not realistic."

Villaseñor cited the costs of thousands of hours of staff time and jail charges as burdens on Tucson's budget.

Jack Harris, the police chief in Phoenix, and Santa Cruz County Sheriff Tony Estrada also filed declarations with the suit.

Gov. Brewer issued a press release supporting the law:

Despite the Department of Justice’s claims in paragraph 62 of today’s lawsuit, Arizona is not trying ‘to establish its own immigration policy’ or ‘directly regulate the immigration status of aliens.’  Arizona Revised Statutes § 11-1051(E) states that the federal government, along with local law enforcement officers authorized by the federal government, can only determine an alien’s immigration status.   Subsection (L) of that same section goes on to state that the law ‘shall be implemented in a manner consistent with federal laws regulating immigration.’


The irony is that President Obama’s Administration has chosen to sue Arizona for helping to enforce federal immigration law and not sue local governments that have adopted a patchwork of ‘sanctuary’ policies that directly violate federal law.   These patchwork local ‘sanctuary’ policies instruct the police not to cooperate with federal immigration officials

"Today's filing is nothing more than a massive waste of taxpayer funds.," Brewer said.

Rep. Raúl Grijalva supports the lawsuit. Tuesday he thanked President Obama  for "seeing clearly that (SB 1070) is not the way to handle immigration reform or border issues."

"Even the most ardent supporters of SB 1070 should support this crucial test of its legality,” Grijalva said in a news release. “All elected officials have sworn to uphold the Constitution, and a test of SB 1070’s constitutionality is not a left-right issue."

Rep. Gabrielle Giffords called both SB 1070 and the lawsuit "unnecessary distractions."

"I am disappointed with the federal lawsuit against SB 1070 for the same reason I was disappointed when this bill became law: Neither will do anything to make Arizona’s border communities more secure," she said in a statement Tuesday afternoon.

"To fully appreciate the seriousness of what Arizonans are up against, President Obama should come to the border. The president should spend an afternoon with the ranchers of Cochise County and the retirees of Green Valley so he can see for himself that what we need are Border Patrol agents on the border, not lawyers in court," Giffords said.

Jesse Kelly, a Republican primary candidate who hopes to take Giffords on in November, said "it is a travesty that this administration has the gall to attack a state on the front lines of the border wars."

Giffords' fellow Arizona Democrats in Congress also panned the lawsuit.

"This lawsuit is a sideshow, distracting us from the real task at hand. A court battle between the federal government and Arizona will not move us closer to securing the border or fixing America’s broken immigration system. The legal fights and boycotts are drawing focus and attention away from what has to be a policy-driven, substantive debate," Rep. Anne Kirkpatrick said. "Washington failed us on this issue again today, and Arizonans have had enough."

"The only thing this lawsuit will do is demonstrate to Arizonans that Washington still doesn’t get it," Rep. Harry Mitchell said. "Arizona needs Washington to take action, but a lawsuit is definitely not the kind of action we need."

"What we need are solutions, not lawsuits," said Arizona Attorney General Terry Goddard, a Democratic candidate for governor. "Until we get real solutions, more states will turn to band-aid remedies to address this very important issue."

"It is disappointing to see the federal government choosing to intervene in a state statute instead of working with Arizona to create sustainable solutions to the illegal immigration issue that our state and country so desperately need," Goddard said in a statement from his campaign.

"Allowing each state to set their own immigration policies would significantly complicate federal immigration enforcement creating a threat to public safety," said Rep. Ed Pastor, who said he was "pleased" that the suit was filed.

Arizona Senators John McCain and Jon Kyl said Tuesday in a news release that the suit may be "very difficult to win."

Moreover, the American people must wonder whether the Obama Administration is really committed to securing the border when it sues a state that is simply trying to protect its people by enforcing immigration law.

Attorney General Holder speaks of the 'federal government's responsibility' to enforce immigration laws; but what are the people of Arizona left to do when the federal government fails in its responsibility?

The Obama Administration has not done everything it can do to protect the people of Arizona from the violence and crime illegal immigration brings to our state.   Until it does, the federal government should not be suing Arizona on the grounds that immigration enforcement is solely a federal responsibility.

The Justice Department found backing from local law enforcement, the agency said in its press release:

In declarations filed with the brief, Arizona law enforcement officials, including the Chiefs of Police of Phoenix and Tucson, said that S.B. 1070 will hamper their ability to effectively police their communities.  The chiefs said that victims of or witnesses to crimes would be less likely to contact or cooperate with law enforcement officials and that implementation of the law would require them to reassign officers from critical areas such as violent crimes, property crimes, and home invasions.

Saying he has "very serious doubts about the constitutionality of SB 1070," Pinal County Attorney James Walsh said he hopes the lawsuit will quickly determine that question:

I welcome the filing of the federal lawsuit which is designed to get a quick answer from the court on this issue. In doing so I neither applaud nor criticize the current federal approach on immigration. The common agreement is that current federal law and policy on immigration needs to change. No one can deny that Arizona has borne a particular burden caused by the slowness of federal authorities, including Congress, to address this issue.

Legal background

The U.S. Constitution says that federal laws supersede state laws:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (Article IV, Section 2)

The argument put forth by the Justice Department is that Arizona's law interferes with the federal prerogative to control immigration. Because of the supremacy clause, the state has no power to make its own laws about illegal immigration, the suit says.

A 1941 Supreme Court case, Hines v. Davidowitz, threw out a Pennsylvania law that required aliens to register with the state, under the doctrine of "conflict preemption."

Justice Hugo Black explained the court's decision:

That the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution, was pointed out by the authors of The Federalist in 1787, and has since been given continuous recognition by this Court. When the national government by treaty or statute has established rules and regulations touching the rights, privileges, obligations or burdens of aliens as such, the treaty or statute is the supreme law of the land. No state can add to or take from the force and effect of such treaty or statute....

A 1976 case, De Canas v. Bica, saw the court uphold a California law that prohibited employers from hiring workers not entitled to lawful residence.

In that case, the court held that the narrow scope of the law, which provided that no "employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers," did not preempt federal laws:

...The fact that aliens are the subject of a state statute does not render it a regulation of immigration, which is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.

At least five other lawsuits have been filed against the bill. Court hearings in those suits are scheduled for July 15 and 22.

Check back for updates.

What's your take?

Should the feds sue to overturn SB 1070? Is Arizona right to take on immigration enforcement at the state level? What is the solution to our border/immigration problem? Let us know in the comments.

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