Obama’s Lawsuit Against Arizona May Be Filed Today

By Rob Port

The Justice Department has decided to file suit against Arizona on the grounds that the state’s new immigration law illegally intrudes on federal prerogatives, law enforcement sources said Monday.




The lawsuit, which three sources said could be filed as early as Tuesday, will invoke for its main argument the legal doctrine of “preemption,” which is based on the Constitution’s supremacy clause and says that federal law trumps state statutes. Justice Department officials believe that enforcing immigration laws is a federal responsibility, the sources said.



A federal lawsuit will dramatically escalate the legal and political battle over the Arizona law, which gives police the power to question anyone if they have a “reasonable suspicion” that the person is an illegal immigrant. The measure has drawn words of condemnation from President Obama and Attorney General Eric H. Holder Jr. and opposition from civil rights groups. It also has prompted at least five other lawsuits. Arizona officials have urged the Obama administration not to sue.



Here’s the pertinent text from the Constitution:



This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.



The 14th amendment contains similar language:



“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”



The Supreme Court has set extensive precedent in ruling on the issue, with McCulloch vs. Maryland (stating that states cannot tax the federal government) being the earliest example. But perhaps the most important case in terms of Obama’s challenge to Arizona’s illegal immigration law may be Edgar vs. Mite Corp. in which the Supreme Court ruled that “A state statute is void to the extent that it actually conflicts with a valid Federal statute.”



Given that the Arizona law doesn’t conflict at all with federal law, that it in fact expands enforcement of federal law to the state level, and that it is perfectly possible to be in compliance with both Arizona immigration law and federal immigration law it would seem as though Obama doesn’t have a case.



Though another Supreme Court ruling may prove problematic. In California v. ARC America Corp. the Supreme Court ruled that the federal government need only have intended to act in a particular circumstance in order for the supremacy clause to be invoked, and that the state law need not even be in contradiction to federal law.



Given that later ruling, it appears as though Obama may have a case.



Really, this could go either way, but setting aside the legal minutia we should ask ourselves as citizens: What in the world is the federal government accomplishing by invoking the supremacy clause in a situation where a state is trying to enforce law the public overwhelmingly wants enforced but the federal government refuses to enforce?



Obama’s lawsuit against Arizona isn’t motivated by jurisdictional concerns but rather political concerns. Namely, that he doesn’t want immigration laws enforced.