The US Department of Justice filed suit against the state of Arizona in federal court Tuesday, challenging the state's tough new immigration law requiring police to ask for ID from anyone they suspect of being undocumented.
The federal government will argue that federal law trumps the state statute and that enforcing immigration law is a federal responsibility. The Department has requested a preliminary injunction to delay enactment of the law, slated for July 29, arguing that the law's operation will cause "irreparable harm."
The DOJ's lawsuit is based on the preemption doctrine adopted by the Supreme Court under the Constitution's supremacy clause, which states that certain matters are of such federal character, as opposed to local or state, that only the federal government can act on them.
As straightforward as that sounds, legal analysts are split over possible outcomes.
“I agree with the argument that the federal government’s authority under the preemption clause will prevail over the Arizona state law,” says Robert Pugsley, professor of law at Southwestern Law School. “Otherwise we could have 50 states writing immigration laws and it would result in the chaos that the preemption clause was specifically created to prevent.”
Likewise, Kevin Johnson, Dean of the School of Law at University of California, Davis, says, “[we] have a clear situation where the federal government is having its powers intruded upon by the state government.”
But that view does not necessarily mean the suit will succeed. “There is good basis to believe the DOJ lawsuit may fail," says Hector Chichoni, partner at the national law firm Epstein Becker Green. "The Arizona law does not necessarily preempt the Federal government, rather [it] sets the state and local government as enforcers of what is already available, and on certain cases, mandatory under immigration law.”
Certain parts of the case are not black and white, including whether state police have authority to enforce federal immigration law, says Muzzafar Chisti, director of the Migration Policy Institute’s office at New York University School of Law.
A few weeks after its passage, state legislators modified the language dictating when a policeman could ask for papers from a suspected illegal immigrant. They added the stipulation that police could only do so if the person had already been pulled over for another offense, such as speeding. That action may have strengthened Arizona's case, argues Mr. Chisti.
The suit will depart from the passionate outcry seen so far in the case, says Chisti. The media and public imagination have run away with the social and cultural ramifications of the law, he says, by focusing on the moral issues and economic boycotts, but the nuts-and-bolts of the issue are by comparison quite boring, he argues. “The court analysis of this will be very technical and non-sexy,” he adds.
Partly because of such marked disagreements within the legal profession itself, other analysts say the public should watch how politics play into the matter.
“Time will tell whether it was a wise political decision for the administration to sue the state of Arizona in addition to touting its continued support for Comprehensive Immigration Reform.,” says Catherine Wilson, a political scientist at Villanova University. She says the decision by the Justice Department to file suit could have potentially damaging repercussions for the Arizona midterm elections this year.
“About two weeks ago, three embattled Arizona Democratic Representatives – Reps. Harry Mitchell, Gabrielle Giffords, and Ann Kirkpatrick – urged the President to reconsider the lawsuit, given their vulnerable seats. Instead of suing the state, they argued that the Obama administration’s efforts would be best spent on providing resources and security to the border.”
“This is a political calculation,” says Mr. Johnson. He says there will be criticism of the DOJ lawsuit in Arizona and other states, “but I’m sure the administration wanted to think politically about how it could affect comprehensive immigration reform.” President Obama’s July 1 speech is clear evidence of the desire by this administration to determine the role of the federal government in immigration, he adds.