Federal Judiciary

US challenges AZ alien law

By Akin Gump Supreme Court Practice Group

Relying on the federal government’s “preeminent authority” over immigration, the Justice Department on Tuesday asked a federal judge to bar enforcement of Arizona’s new law seeking to round up non-citizens illegally in that state.  The Constitution and federal law, the government argued, “do not permit the development of a patchwork of state and local immigration policies throughout the country.”  Arizona has sought to enact “its own immigration policy,” the brief said.   The complaint is here, the supporting brief is here, and the Department’s news release is here.

The state law, as described in the complaint, seeks “to deter and punish unlawful entry and presence by requiring, whenever practicable, the determination of immigration status during any lawful stop by police where there is ‘reasonable suspiciion’ that an individual is unlawfully present, and by establishing new state criminal sanctions against unlawfully present aliens.”  Such a statute, the Department said, “disrupts federal enforcement priorities and resources that focus on aliens who pose a threat to national security or public safety.”

Following Arizona’s lead, the complaint said, “numerous other states are contemplating passing legislation similar” to the new statute, S.B. 1070.

The lawsuit argued that the Arizona law violates the Constitution’s Supremacy Clause and its Commerce Clause.  It asked the District Court to issue a preliminary injunction to immediately bar enforcement while the case proceeds in court, and then a permanent injunction to nullify it.  The law is currently scheduled to go into effect on July 29, the Department noted.  (The case, U.S. v. Arizona, et al., has been docketed as 10-1413, and has been assigned to District Judge Neal V. Wake of Phoenix, named to the federal bench in 2004.)

“Although a state may adopt regulations that have an indirect or incidental effect on aliens, a state may not establish its own immigration policy or enforde state laws in a manner that interferes with federal immigration law,” the brief said.  “The State of Arizona has crossed this constitutional line.”

At issue in the case actually are two laws. S.B. 1070, setting up the new statewide anti-alien enforcement scheme, was signed into law by Gov. Jan Brewer on April 23,  A week later, the state legislature passed a new measure, H.B. 2162, that, Gov. Brewer said, was an attempt to respond to “expressed fears that the original law would somehow allow or lead to racial profiling.”  The government lawsuit targeted both statutes.

Although the two laws create a multi-faceted state approach to unlawful aliens in the state, two provisions have drawn the heaviest public criticism since enactment: the directive to police, when they make a legal stop of a person, to find out whether he or she is in the country illegally, and an authorization to any one living legally in the state to go to court to force police to carry out that directive “to the full extent” of federal immigration law.  In combination, the lawsuit argued, this amounts to an “alien inspection scheme” that may result in even aliens legally in the country being subjected  to “inquisitorial practices and police surveillance.”

The Arizona law already was under court challenges filed by civil rights organizations.

Full post as published by SCOTUSBLOG on July 06, 2010 (boomark / email).