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The Arizona Immigration Lawsuit

The Obama administration has brought a lawsuit to enjoin the Arizona immigration bill. There is no equal protection argument (i.e., the government doesn’t call Arizonans racists, accuse them of passing a law to hassle Hispanics, or contend that the law is violative of the Equal Protection Clause because it will inevitably impact one ethnic group disproportionately). There is no Fourth Amendment claim challenging the bill’s provisions, which grant police the right to stop and demand documentation based on reasonable suspicion. There are no grand policy pronouncements in the complaint. It is a straightforward pre-emption argument. In paragraph two of the lawsuit, the government asserts:

In our constitutional system, the federal government has preeminent authority to regulate immigration matters. This authority derives from the United States Constitution and numerous acts of Congress. The nation’s immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests. Congress has assigned to the United States Department of Homeland Security, Department of Justice, and Department of State, along with other federal agencies, the task of enforcing and administering these immigration-related laws. In administering these laws, the federal agencies balance the complex — and often competing — objectives that animate federal immigration law and policy. Although states may exercise their police power in a manner that has an incidental or indirect effect on aliens, a state may not establish its own immigration policy or enforce state laws in a manner that interferes with the federal immigration laws. The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country.

This is not wacky stuff, and may very well carry the day. And frankly, it’s a good thing to have this thrashed out in court so we can resolve the issue as to whether we will have 50 separate immigration laws. Supporters of the law should stop whining about the feds’ lawsuit: if the supporters are right — if, in other words, every state can gin up their own immigration rules — then they’ll have a grand victory.

But after the lawsuit is won or lost, we’ll still have unsecured borders. And we’ll still have millions around the world who want to come here and millions already here whom — with all due respect to Sen. John McCain – Americans don’t have the stomach to round up and send “home.” (By the way, can we agree as a factual matter that, generally, their homes and lives and children are here?)

In sum, I don’t begrudge the filing of the lawsuit. What we should all mind is that we have a president who’d rather fan the rhetorical flames than try to solve the problem.



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