US vs Arizona

The US Justice Department, led by Atty. General Eric Holder, filed suit in a Phoenix federal court to stop the Arizona law on immigration enforcement from taking effect July 28. The Government, which only targets drug dealers and violent criminals for deportation, claims that the new state law would capture " a flood of illegal immigrants who pose no danger." (1)

The Attorney General said that "Setting immigration policy and enforcing immigration law is a federal responsibility.....A patchwork of state laws will only create more problems than it solves." The Government brief contends that "A state may not establish its own immigration policy.....immigration remains the exclusive province of the federal government."

Recall that the new Arizona law only applies when police have probable cause to believe that a person is engaging in a crime, such as drunken driving or drug smuggling. If the officer has "a reasonable suspicion" that the suspect is an illegal alien, the officer must then ascertain if the suspect really is one. Those who cannot prove they are in Arizona legally would then be charged under state law. If convicted, they could be sentenced to fines and even jail. After that, they would be turned over to federal immigration officials. But Arizona has no power to require the Government to deport any of these people; the immigration officials could simply release them all.

There are many areas of criminal law in which state and federal law overlap such as drug dealing and identity theft. Thus we already have " a patchwork of state laws" that cover the same activities as federal laws. In some of these areas the US Justice Department chooses to prosecute only large interstate activities, leaving smaller cases to the state and local authorities. By the same token, the fact that the federal government has no interest in deporting most illegal aliens should not be a bar to arresting and prosecuting them on the state level.

At the heart of this dispute is the desire of President Obama to allow illegal aliens to remain in this country while they apply for citizenship. Republican Senators John McCain (AZ) and Lindsey Graham (SC) have also endorsed bills that would permit this, but they have "flip-flopped" on the issue since it became ballot-box poison. When nearly ten percent of the American workforce is unemployed, most Americans see no benefit in allowing large numbers of illegal aliens to remain here and compete for whatever jobs become available. Thus the President's support for "amnesty" for illegals is both courageous and politically clueless.

I believe that the US District Court in Phoenix will find the case is "not ripe for decision at this time" because so far no harm has been done to anyone, and it is not certain that any harm will ever be done. The Court could either dismiss this suit without prejudice (2) or delay decision until after the law has become effective. Until the Government can present facts based upon the actual implementation of the law, the Court will have no cause to invalidate it.

If only President Obama and Atty. General Holder would read the Glazerbeam, the Government and lawyers for Arizona could be spared this pointless litigation.

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(1) McClatchy News Service, July 7, 2010.

(2) A case dismissed without prejudice can be refiled later. In this case, the Government could refile a few months after the law becomes effective if the abuses and problems predicted by opponents of the law actually occur.