The federal government took a momentous step into the immigration debate Tuesday when it filed a lawsuit seeking to throw out Arizona's crackdown on illegal immigrants, calling it a law that blatantly violates the Constitution.
The lawsuit filed in federal court in Phoenix sets the stage for a high-stakes legal clash over states rights at a time when politicians across the country have indicated they want to follow Arizona's lead on the toughest-in-the-nation immigration law.
The legal action represents a thorough denunciation by the government of Arizona's action, declaring that the law will "cause the detention and harassment of authorized visitors, immigrants and citizens who do not have or carry identification documents" while altogether ignoring "humanitarian concerns" and harming diplomatic relations.
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Supporters of the law say the suit was an unnecessary action by the federal government after years of neglecting problems at the border. Republican Gov. Jan Brewer called the lawsuit "a terribly bad decision."
Arizona passed the law after years of frustration over problems associated with illegal immigration, including drug trafficking, kidnappings and murders. The state is the biggest gateway into the U.S. for illegal immigrants, and is home to an estimated 460,000 illegal immigrants.
The law requires officers, while enforcing other laws, to question a person's immigration status if there's a reasonable suspicion that they are in the country illegally. The law also makes it a state crime for legal immigrants to not carry their immigration documents and bans day laborers and people who seek their services from blocking traffic on streets.
Other states have said they want to take similar action — a scenario the government cited as a reason for bringing the lawsuit.
"The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country," the suit says.
The heart of the legal arguments focus on the Supremacy Clause of the Constitution, a theory that says federal laws override state laws. The lawsuit says there are comprehensive federal laws on the books that cover illegal immigration — and that those statutes take precedent.
"In our constitutional system, the federal government has pre-eminent authority to regulate immigration matters," the lawsuit says. "This authority derives from the United States Constitution and numerous acts of Congress. The nation's immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests."
The government is seeking an injunction to delay the July 29 implementation of the law until the case is resolved. It ultimately wants the law struck down.
State Sen. Russell Pearce, the principal sponsor of the bill co-sponsored by dozens of fellow Republican legislators, denounced the lawsuit as "absolute insult to the rule of law" as well as to Arizona and its residents.
"It's outrageous and it's clear they don't want (immigration) laws enforced. What they want is to continue their non-enforcement policy," Pearce said. "They ignore the damage to America, the cost to our citizens, the deaths" tied to border-related violence.
The lawsuit is sure to have legal and political ramifications beyond Arizona as the courts weigh in on balancing power between the states and the federal government and politicians invoke the immigration issue in this crucial election year.
Reflecting the political delicacy of the issue, three Democratic members of Congress in Arizona asked the Obama administration not to bring the suit in a year when they face tough re-election battles. On the Republican side, Sen. John McCain is locked into a tough primary fight as his right-leaning GOP challenger takes him to task for his earlier promotion of comprehensive immigration reform, which he has since abandoned in favor of a message to "Complete the danged fence."
The case focuses heavily on the legal argument called pre-emption — an issue that has been around since the Founding Fathers declared that the laws of the United States "shall be the supreme Law of the land."
The Obama administration's reliance on the pre-emption argument in the Arizona case marks the latest chapter in its use of this legal tool.
Within months of taking office, the Obama White House directed department heads to undertake pre-emption of state law only with full consideration of the legitimate prerogatives of the states.
The 2009 directive was aimed at reversing Bush administration policy which had aggressively employed preemption in an effort to undermine a wide range of state health, safety and environmental laws.
"The case strikes me as incredibly important because of its implications for the immigration debate," said University of Michigan constitutional law professor Julian Davis Mortenson. "The courts are going to take a close look at whether the Arizona law conflicts with congressional objectives at the federal level."
He noted that the law already is being challenged by the American Civil Liberties Union and other groups opposed to the new statute.
"The issue was already teed up in the courts. There's no reason for the Justice Department to get involved. The Justice Department doesn't add anything by bringing their own lawsuit," Kobach said in an interview.
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