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The Government Takes on Arizona

By / 7.8.2010

On Tuesday, the federal government fired its first legal shot at Arizona’s controversial immigration law. The law as it stands now is slightly less stringent than it was in its original form.  The original law allowed law enforcement officers to inquire into the immigration of anyone that they contacted. The amended law does not allow officers to stop and look into the immigration of a person if the stop is based solely on the person’s race. However, the law does require authorities to determine the immigration status of every person that breaks a state or local law, no matter how minor. It also attempts to address other immigration-related issues such as alien registration, smuggling, and employment, among others. The state became the target of national and international scorn when its Governor Jan Brewer signed the law on April 30th.

The law is set to take effect on July 29th, but the federal government is seeking an injunction that will stop that. The U.S. is actually seeking two types of injunctions: 1) a permanent injunction that will stop the law from ever being enforced, and 2) a preliminary injunction that will stop enforcement of the law while the case winds its way through the courts. The government is concerned that if the Arizona law is allowed to stand, it will lead other states to pass similar sweeping legislation that will further encroach on the federal government’s regulation of immigration, and drain federal resources that would have to be used for enforcement.

Cutting away all the legalese in the U.S.’s 58-page brief, the government’s argument boils down to this: the Arizona law impermissibly conflicts with federal immigration laws, and it will have adverse effects on federal resources used to regulate immigration and U.S. foreign policy. Part of the argument is that Arizona’s blanket treatment of all unlawful aliens affects the discretion given to the federal government under federal law. That discretion allows the federal government to more effectively target aliens that are a national security risk. Other areas of discretion allow the federal government to allow unlawful aliens to remain in the U.S. for humanitarian reasons. Also, requiring Arizona law enforcement officials to check the status of every person that breaks a law in the state will place too heavy a burden on federal resources that keep track of individuals’ immigration status.

Furthermore, U.S. foreign policy is affected by the Arizona bill because the current immigration framework arose in part from negotiations with other countries on how foreigners in the U.S. could expect to be treated. The Arizona law criminalizes actions by certain aliens that are treated with civil laws under the federal system. The federal government argues that this broad criminalization does not account for potential foreign policy concerns with respect to some aliens, and does not allow the U.S. to “speak with one voice” in the area of immigration.

This is the first step in what is sure to be a contentious legal battle. The federal government makes a convincing constitutional argument that Arizona’s law impermissibly strays into an arena meant to be controlled by federal law. Arizona’s response will most likely be that it was forced to enact the law in an effort to protect the well-being of the state in the face of the federal government’s inability to stem the tide of undocumented immigrants that stream across Arizona’s border every day. I would not be surprised to see the federal court in Arizona grant an injunction that stops the state from enforcing the law during the litigation process in order to allow it time to get to the Supreme Court, which will certainly make the final determination.

Photo credit: Fibonacci Blue’s Photostream