We know one thing for sure about the fight over Arizona's new immigration law. There will be a torrent of lawsuits as civil-rights groups try to stop the law from taking effect as scheduled this summer. What we don't know is how those proceedings will be affected by the Obama Justice Department, which is contemplating the highly unusual step of filing its own suit against the state of Arizona. Also unknown is the influence of President Obama himself, who has gone out of his way to raise questions about the law.
The drafters of the law knew the lawsuit was coming; a lawsuit is always coming when a state tries to enforce the nation's immigration laws. What the drafters didn't expect was Obama's aggressive and personal role in trying to undermine the new measure.
"You can imagine, if you are a Hispanic American in Arizona ..." the president said in late April at a campaign-style appearance in Iowa, "suddenly, if you don't have your papers and you took your kid out to get ice cream, you're going to be harassed." At about the same time, Attorney General Eric Holder said he was considering a court challenge.
"The practice of the Justice Department in the past with states involving immigration has been to let the courts settle it and not weigh in as a party," says Kris Kobach, the law professor and former Bush Justice Department official who helped draft the Arizona law. Having Justice intervene, Kobach and other experts say, would be extraordinary.
The problem for Obama and Holder is that the people behind the new law have been through this before -- and won. Arizona is three-for-three in defending its immigration measures. In 2008, the state successfully defended its employer-sanctions law, which made it a state crime to knowingly employ an illegal immigrant. Facing some of the same groups that are now planning to challenge the new law, Arizona prevailed both in federal district court and at the 9th Circuit Court of Appeals, the nation's most liberal federal-appeals court.
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In federal court in 2005, Arizona successfully defended Proposition 200, which required proof of citizenship for voting and also restricted benefits to illegals. And in 2006, officials won a state court challenge to Arizona's human-smuggling law.
The arguments that liberal groups make against the new law are similar to those made in the past. Foremost among them is the claim that only the federal government can handle immigration matters, and thus the Arizona measure pre-empts federal law.
Lawmakers thought of that ahead of time. "This law was carefully drafted to avoid any legal challenge on pre-emption in two ways," Kobach explains. "One, it perfectly mirrors federal law. Courts usually ask whether a state law is in conflict with federal law, and this law is in perfect harmony with federal law.
"Two, the new law requires local law-enforcement officers not to make their own judgment about a person's immigration status but to rely on the federal government," Kobach continues. Any officer who reasonably suspects a person is illegal is required to check with federal Immigration and Customs Enforcement. "As long as the state or city is relying on the federal government to determine immigration status, that will protect against a pre-emption challenge," Kobach says.
But what if the Obama administration argues that the law is a burden on the federal government? Or refuses to assist Arizona in determining a person's legality? The drafters thought of that, too. There's a federal statute -- 8 USC 1373, passed during the Clinton years -- requiring the feds to verify a person's immigration status any time a state or local official asks for it. The federal government cannot deny assistance to Arizona without breaking the law itself.
Given all that, Obama and Holder will have a hard time stopping this law. Their best hope is that a judge might be swayed by the political storm that has erupted, mostly on the left, by opponents raising the specter of fascism, Nazism and a police state in Arizona.
That was one thing the drafters didn't expect. As they see it, the old employer-verification law was broader in scope and more serious in effect than the new law, and it didn't set off this kind of national controversy. That tells Kris Kobach one thing about the current battle: "It's more about the politics of 2010 than it is about this particular law."
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