from the Constitutional Law Professor Blog

[one...two...tree 2,762]

As anticipated, the Department of Justice has filed a complaint in Arizona federal court seeking a declaration and injunction that Arizona SB 1070, the controversial statute signed into law April 23 regarding immigration is unconstitutional. The DOJ complaint has three causes of action: the supremacy clause, preemption, and the [dormant] commerce clause. With the complaint, the DOJ has filed a motion for preliminary injunction and supporting memorandum [available here]. The DOJ memo concentrates on the preemption argument as the basis for the likelihood to prevail on the merits prong of the preliminary injunction standard. (We've previously discussed the preemption arguments here). The DOJ argues different types of preemption, including field and conflict:

In enacting a state policy of "attrition through enforcement," Arizona's S.B. 1070 ignores every objective of the federal immigration system, save one: the immediate apprehension and criminal sanction of all unlawfully present aliens. See S.B. 1070 § 1. Arizona's one-size-fits-all approach to immigration policy and enforcement

undermines the federal government's ability to balance the variety of objectives inherent in the federal immigration system,

including the federal government's focus on the most dangerous aliens. By requiring local police officers to engage in maximum inquiry and verification (on pain of civil suit) and by providing for the conviction and incarceration of certain foreign nationals in Arizona for their failure to register, for entering or traveling throughout the state using commercial transportation, or for soliciting work, the "balance" struck by S.B. 1070 is not only different from that of the federal government,

but it will interfere with the federal government's ability to administer and enforce the immigration

laws in a manner consistent with the aforementioned concerns that are reflected in the INA. Despite the statute's self serving claim that it "shall be implemented in a manner consistent with federal laws regulating immigration," S.B. 1070 § 12, the act mandates

a conflicting, Arizona-specific immigration policy

– "attrition through enforcement" – and prescribes various provisions that implement that policy in

conflict with federal priorities.

To

permit a hodgepodge of state immigration policies,

such as the one Arizona has attempted in S.B. 1070, would

impermissibly interfere

with the federal government's balance of uniquely national interests and priorities in a number of ways.

DOJ Memo at 23 (emphasis added). Additionally, the memo argues that the state law interferes with United States foreign relations and foreign affairs.

The memo also highlights specific provisions of SB 1070 that it argues are preempted. The memo argues sections 2 and 6 are preempted because their mandatory requirements for determining immigration status conflict with federal law and priorities: section 2 will result in the harassment of lawfully present aliens and is therefore at odds with congressional objectives and will "burden federal resources and impede federal enforcement and policy priorities;" section 6 extends Arizona's "warrantless arrest authority to out-of-state 'removable' offenses and is preempted because it will lead to the harassment of aliens." Section 3, the "complete or carry an alien registration document" provision is preempted because interferes with comprehensive federal alien registration law and "seeks to criminalize unlawful presence and will result in the harassment of aliens." Section 4, amending Arizona's alien smuggling statute is preempted because it conflicts with federal law. Section 5, the state criminal sanction against unauthorized aliens who solicit or perform work is preempted by the federal employer sanctions scheme, and the "transporting, harboring, or concealing provision" violates preemption and dormant commerce clause principles (the item of commerce in question being the "alien" him or herself).

This high-profile complaint joins the other lawsuits filed alleging the unconstitutionality of SB1070, including on equal protection grounds.

http://lawprofessors...titutional.html

Edited July 10, 2010 by El Buscador

[one...two...tree 2,762]

and more to argument on preemption:

But even if Arizona's new law doesn't fall under field preemption, it almost certainly falls under conflict preemption. The federal immigration and naturalization scheme includes a place for state and local authorities. 8 U.S.C. Sec. 1252c reads:

(a) In general. Notwithstanding any other provision of law, to the extent permitted by relevant State and local law, State and local law enforcement officials are authorized to arrest and detain an individual who--

(1) is an alien illegally present in the United States; and

(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction, but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual and only for such period of time as may be required for the Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.

(b) Cooperation. The Attorney General shall cooperate with the States to assure that information in the control of the Attorney General, including information in the National Crime Information Center, that would assist State and local law enforcement officials in carrying out duties under subsection (a) of this section is made available to such officials.

The provision contemplates a circumscribed role for state and local officials, to be sure, but the Arizona law authorizes a much broader role. Particularly: The Arizona law authorizes arrest without a showing of a prior felony, the requirement under (a)(2), above. Here's the provision from SB 1070:

E. A law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States.

An alien's unauthorized presence in the United States is just such an offense under 8 U.S.C. Sec. 1227. Arizona's law is thus in conflict with the federal law and likely violates the Supremacy Clause under conflict preemption.

[evli1966 88]

http://lawprofessors...titutional.html

As mentioned before by most people here on VJ and else where the "complaint" is nothin gmore than a distraction and a "hail mary" for the administraion and their puppet in the DOJ.

The "complaint" only points out the Federal Government is responsible for the Immigration Law that SB1070 mirrors and that the Federal Government is negligent for not enforcing those laws.

By the States Sovereign rights it is protecting it's legal citizens by passing a law that mirrors the Fedral law but will be enforced it is not doing anything different than what the Federal Law states should be enforced. There is no consitutional law that is in conflict with SB1070 and it does not hinder the Federal enforcment of those laws in fact it assists in the enforement.

This is why the conjecture the are putting forth by the DOJ (on behest of the Obama administration) as a complaint should not hold water when reviewed by the Supreme Cout.

[one...two...tree 2,762]

As mentioned before by most people here on VJ and else where the "complaint" is nothin gmore than a distraction and a "hail mary" for the administraion and their puppet in the DOJ.

Yes. These constitutional law professors are in cahoots with the DOJ and are just making this sh!t up. What the hell do they know compared to the armchair legal experts we have here on VJ?

[JohnSmith2007 353]

Yes. These constitutional law professors are in cahoots with the DOJ and are just making this sh!t up. What the hell do they know compared to the armchair legal experts we have here on VJ?

No, but like politicians liberal and conservative constitutional professors interpret the constitution differently. These see it like Obama's people do so you quote them. I am sure there are other professors that would disagree. But I am sure you would call them "fringe".

[one...two...tree 2,762]

No, but like politicians liberal and conservative constitutional professors interpret the constitution differently. These see it like Obama's people do so you quote them. I am sure there are other professors that would disagree. But I am sure you would call them "fringe".

Believe it or not, not everyone is an ideologue in this country. In fact, thankfully most Americans are not. As for constitutional law professors, I'll take their legal opinion over yours or any other armchair legal expert here on VJ, any day of the week. Their points are well documented above and straight forward. I am confident that the Supreme Court will rule SB1070 unconstitutional based on the numerous expert legal opinions that I've read from several different sources.

[Usui Takumi 1,562]

I say let the law stand. After all it will be a great way for legal aliens to make money.

[one...two...tree 2,762]

I say let the law stand. After all it will be a great way for legal aliens to make money.

Let our beloved Constitution stand and justice prevail...always.

[Ban Hammer 12,830]

I say let the law stand. After all it will be a great way for legal aliens to make money.

but legal aliens making money isn't the plan some have.

[Usui Takumi 1,562]

Haha what I meant was making money through civil lawsuits. The way I see it, even if no one had challenged the law, there will quite a few civil lawsuits given that 287g caused plenty of suits and its very small in scale in comparison to SB1070.

How ironic would it be to see Arizona's coffers drained by immigrants in court.

[Pooky 3,343]

Believe it or not, not everyone is an ideologue in this country. In fact, thankfully most Americans are not. As for constitutional law professors, I'll take their legal opinion over yours or any other armchair legal expert here on VJ, any day of the week. Their points are well documented above and straight forward. I am confident that the Supreme Court will rule SB1070 unconstitutional based on the numerous expert legal opinions that I've read from several different sources.

No, but they support Arizona.

Let our beloved Constitution stand and justice prevail...always.

And when it does, with the judge upholding AZ SB 1070, will you then accept it, or still complain that it's Unconstitutional, despite a legal ruling to the contrary?

[slim 1,514]

So basically DOJ is now saying "they can stay as long as they don't have a prior felony."

Thanks, guys!

[Sofiyya 1,687]

So basically DOJ is now saying "they can stay as long as they don't have a prior felony."

Thanks, guys!

It's more like "They can stay as long as they vote **."

[GabiandVi 34]

Their opinions may be correct. I guess the only opinions that will matter will be the judges who hear the case, appeal, etc.

However, if Arizona's law, which basically seems to be an extension of federal laws, infringes on federal powers, what about sanctuary cities? Their laws are in direct contradiction to federal laws, yet no suits have been brought against them by the DOJ. How is that? What am I missing?

[slim 1,514]

You're missing the same thing we're all missing.