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Supreme Court takes Arizona immigration law case in key test of federal power

The Supreme Court has agreed to consider the tough Arizona immigration law, setting the stage for a potentially landmark ruling on whether states have rights to set immigration policy.

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“Federal law and policy do not adopt such a one-size-fits-all approach to enforcement,” Mr. Verrilli wrote.

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Under the Obama administration’s approach, federal law enforcement officials are focusing primarily on a subset of illegal immigrants who threaten public safety or national security. In contrast, Arizona’s law targets every illegal immigrant.

Arizona officials maintain that they are engaging in a form of cooperative federalism – a state using its laws and resources to help the national government fight illegal immigration. The Obama administration says such state efforts are neither cooperative nor helpful. They are designed to second-guess and frustrate federal policy, officials say.

“Arizona does not seek intergovernmental cooperation – it seeks to pursue its own policy of attrition through enforcement,” Verrilli said.

The solicitor general says immigration laws allow significant discretion to federal officials to set such national priorities. The national government has the power to preempt state laws that undercut those priorities, he said. 

In his brief to the high court, Mr. Clement said it is Congress that wields the power to determine the substance of cooperative federalism between the states and the national government in matters of immigration enforcement – not a selective reading of the statutes by Obama administration officials. Congress did not preempt the states from aggressively enforcing the letter and spirit of provisions enshrined in federal law, he said.

“Preemption turns on judicial interpretation of congressional intent, not on what the executive branch unilaterally deems cooperative,” Clement wrote. “Multiple statutory provisions make clear that Congress’ judgment was to facilitate – not preempt – state efforts to enforce federal immigration laws.”

Clement adds: “Cooperative federalism is not a one-way street. States are not consigned to being silent partners who can enforce federal standards only if they do not complain about the federal government’s efforts.”

Like the dispute over health-care reform, the battle over state enforcement of immigration laws is ultimately a battle over government power and which branch gets to wield it.

As in the health-care dispute, the Obama administration is, again, working to maximize the power of the national government at the expense of state and local governments. According to Arizona, the administration is seeking to dictate the terms of immigration enforcement nationwide in direct opposition to state efforts to use their own extensive police powers to respond to what they perceive as a local threat to the health and safety of local residents.

The administration counters that the states are trying to infringe on power reserved to the national government. SB 1070’s provisions “do not represent an effort to cooperate with the federal government in enforcing federal immigration law; instead, they are designed to establish Arizona’s own immigration policy,” Verrilli said.

“The court of appeals correctly held that [federal immigration law] precludes the state’s effort to challenge federal policy rather than cooperate with federal officials in furthering it,” he said.

The case will be set for oral argument next spring and a decision is expected by late June.

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