Holder’s suit also conflicts directly with federal immigration law. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. §1373) specifically mandates that no federal, state, or local government can “prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service [now Immigration and Customs Enforcement or ICE], information regarding the citizenship or immigration status, lawful or unlawful, of any individual,” a provision upheld by the Second Circuit Court of Appeals in 1999. Congress wanted local governments to get information on immigration status from the federal government – and that is exactly what the Arizona law requires for anyone arrested in the state. Yet Holder is trying to prevent Arizona officials from checking “the citizenship or immigration status” of “any individual.”

Now we’re awaiting a ruling by a federal judge on the Justice Department’s request for a temporary injunction to stop the law from going into effect on Thursday. It’s clear, though, that the only way that judge could possibly rule in the Department’s favor is by ignoring the law and this precedent.

Justice Department spokesman Tracy Schmaler asserts that Arizona is “actively” interfering with federal law while sanctuary cities are just not using their resources to enforce federal law. This bogus claim displays fundamental ignorance of these federal legal requirements. Rep. Lamar Smith of Texas, the ranking Republican on the House Judiciary committee and the chief author of the 1996 immigration law, rightly calls it “absurd.” Cities like San Francisco not only do not enforce federal immigration laws, some violate it by protecting aliens from deportation and refusing to cooperate with or provide information to immigration officials.

As the nine states note in their brief, the Justice Department is trying to negate the “preexisting power of the States to verify a person’s immigration status and similarly seeks to reject the assistance that the States can lawfully provide to the Federal government.” Holder’s claim that Arizona is interfering with federal power to regulate immigration is near frivolous.

Arizona simply requires that law enforcement personnel (1) ascertain the immigration status of people they have lawfully detained for some other reason and (2) report to the federal government the presence of any detainee determined to be here illegally. If the Obama administration wants to ignore that information and reject that assistance, it has that option. The only possible “interference” with federal power is the risk that the feds might be publicly embarrassed by a policy of non-enforcement. Apparently the White House and DOJ consider embarrassment a federal offense.

Holder makes one further -- yet equally absurd -- claim: that by trying to deter the movement of illegal aliens into Arizona, the state is restricting interstate commerce and thus violates the Commerce Clause. How can deterring the entry of people who have no legal right to enter possibly violate interstate commerce? It is the same as saying that -- notwithstanding federal laws that bar importation of heroin -- a state that busts heroin traffickers is flouting the Commerce Clause.

Federal law stipulates that any person who “conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection,” an illegal alien is committing a crime. It is also criminal just to “encourage” residence by illegal aliens. Yet sanctuary cities like San Francisco have enacted formal policies that embrace all these illegal acts. Such policies lead directly to further crimes, such as the vicious murder of a father and his two sons on a San Francisco street. The killer was an illegal alien with two prior felony convictions -- yet on neither occasion did San Francisco authorities notify the feds of his presence. Had they done so, he would not have been able to gun down Tony Bologna, 48, and his sons Michael, 20, and Matthew, 16, as they sat in their car on June 16, 2008.

Holder’s refusal to sue sanctuary cities is an abrogation of his responsibility as the nation’s chief federal law enforcement officer. Unlike Arizona, many of these cities have policies that violate federal law.

The Obama administration claims Arizona’s law will “disrupt federal immigration enforcement.” But the only thing it could possibly disrupt is federal non-enforcement. As the elections approach, Holder’s suit may help gin up enthusiasm among the president’s more radical political allies, such as La Raza. But using the law enforcement powers of the federal government to achieve political ends is a dangerous abuse of power.


Hans A. von Spakovsky

Hans A. von Spakovsky is a Senior Legal Fellow at the Heritage Foundation and a former commissioner on the Federal Election Commission.