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Arizona’s new anti-illegal immigration law, signed last week, has caused much wailing and gnashing of teeth from the left. Charges that police officers will engage in racial profiling have been spouted from many in the mainstream media even though it is expressly prohibited in the law. But, that hasn’t stopped the hysteria and it certainly won’t stop the lawsuits. In fact, at this time, less than a week after its passage, there have already been three lawsuits filed.
This comes as no surprise to the authors of the law. Legal challenges were expected, and in fact, the law was carefully crafted with possible challenges in mind.
Byron York, at the Washington Examiner, has an informative piece about how the law was crafted and the surprise of one of the authors that the Justice Department might intervene:
The drafters of the law knew the lawsuit was coming; a lawsuit is always coming when a state tries to enforce the nation’s immigration laws. What the drafters didn’t expect was Obama’s aggressive and personal role in trying to undermine the new measure.
“The practice of the Justice Department in the past with states involving immigration has been to let the courts settle it and not weigh in as a party,” says Kris Kobach, the law professor and former Bush Justice Department official who helped draft the Arizona law. Having Justice intervene, Kobach and other experts say, would be extraordinary.
The problem for Obama and Holder is that the people behind the new law have been through this before — and won. Arizona is three-for-three in defending its immigration measures. In 2008, the state successfully defended its employer-sanctions law, which made it a state crime to knowingly employ an illegal immigrant. Facing some of the same groups that are now planning to challenge the new law, Arizona prevailed both in federal district court and at the 9th Circuit Court of Appeals, the nation’s most liberal federal appeals court.
In federal court in 2005, Arizona successfully defended Proposition 200, which required proof of citizenship for voting and also restricted benefits to illegals. And in 2006, officials won a state-court challenge to Arizona’s human smuggling law.
The arguments that liberal groups make against the new law are similar to those made in the past. Foremost among them is the claim that only the federal government can handle immigration matters, and thus the Arizona measure pre-empts federal law.
Lawmakers thought of that ahead of time. “This law was carefully drafted to avoid any legal challenge on pre-emption in two ways,” explains Kobach. “One, it perfectly mirrors federal law. Courts usually ask whether a state law is in conflict with federal law, and this law is in perfect harmony with federal law.
“Two, the new law requires local law enforcement officers not to make their own judgment about a person’s immigration status but to rely on the federal government,” Kobach continues. Any officer who reasonably suspects a person is illegal is required to check with federal Immigration and Customs Enforcement. “As long as the state or city is relying on the federal government to determine immigration status, that will protect against a pre-emption challenge,” says Kobach.
But what if the Obama administration argues that the law is a burden on the federal government? Or refuses to assist Arizona in determining a person’s legality? The drafters thought of that, too. There’s a federal statute — 8 USC 1373, passed during the Clinton years — requiring the feds to verify a person’s immigration status any time a state or local official asks for it. The federal government cannot deny assistance to Arizona without breaking the law itself.
Given all that, Obama and Holder will have a hard time stopping this law. Their best hope is that a judge might be swayed by the political storm that has erupted, mostly on the left, by opponents raising the specter of fascism, Nazism, and a police state in Arizona.
That was one thing the drafters didn’t expect. As they see it, the old employer verification law was broader in scope and more serious in effect than the new law, and it didn’t set off this kind of national controversy. That tells Kris Kobach one thing about the current battle: “It’s more about the politics of 2010 than it is about this particular law.”
When the subject is illegal immigration and the federal government, it always comes down to politics.