July 11, 2010 in Nation/World

Arizona law likely doomed, experts say

But high court might surprise, some think
David G. Savage Tribune Washington bureau
 

WASHINGTON – Arizona’s law giving local police immigration enforcement powers is likely to be struck down, most legal experts predict, now that the Obama administration has gone to court asserting it conflicts with federal law.

They cite the long-standing principle that the federal government has exclusive control over immigration and that “no state can add or take away” from the policy set in Washington.

However, they caution that one large uncertainty is that the current Supreme Court has not ruled directly on such a state-federal clash over immigration.

Traditionally, the federal government’s view carries extra weight in disputes over immigration.

“It’s one thing for MALDEF (Mexican American Legal Defense and Educational Fund) or the ACLU to say this (Arizona law) interferes with federal policy. It is quite a different thing when the federal government goes to court and says it,” said Jack Chin, a University of Arizona law professor. “The clear rule has been that states do not have the power to regulate immigration.”

Arizona’s leaders have said their law does not conflict with federal immigration policy. However, the Justice Department argued that the state exceeded its authority by making it a state crime for an illegal alien to apply for a job or to be caught without registration papers showing his immigration status. Such “unlawful presence” is a civil violation, not a federal crime, and thus the state cannot make this immigration violation into a crime, the department contended.

The administration also asserted that the federal policy is to target “dangerous aliens” such as violent criminals, fugitives and gang members, rather than to arrest and deport the millions of illegal immigrants living in this country.

“There is a tension between the federal policy and the state of Arizona,” said Washington lawyer Paul Virtue, former general counsel for the Immigration and Naturalization Service. “The state is setting different priorities and different penalties.”

The Constitution authorizes Congress to set a “uniform rule of naturalization” and says the laws of the United States are the “supreme law of the land.” The Justice Department cites this basic provision in arguing why the Arizona law should be declared “invalid, null and void.”

In one famous case, the Supreme Court in 1941 threw out a Pennsylvania law that required aliens to carry an “alien identification card.” The state has no such authority, the justices said.

In recent years, some states and cities have sought to enforce restrictions on illegal immigrants on the basis that the federal government had failed to enforce the existing laws.

Most of those efforts have run aground, however.

Some legal experts think the Supreme Court may be ready to reconsider the issue.

“This is an unsettled area of constitutional jurisprudence. The last major pronouncement on the question was against a completely different landscape,” said Temple University law professor Peter Spiro. The justices “may be willing to cut (states) some slack in the face of Washington’s now persistent failure to deal with immigration reform.”

Arizona’s lawyers say their law, due to take effect July 29, would not conflict with federal law, since it authorizes police to question a person when there is a “reasonable suspicion” they are here illegally.

If a judge blocks the measure from taking effect, the state can immediately appeal to the 9th Circuit Court. The state may also seek a quick appeal to the U.S. Supreme Court if that fails.

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