Arizona Immigration Law: Why Obama Should Sue

With the Justice Department threatening to sue over the Arizona immigration law, Adam Winkler says that’s the only chance for opponents to overturn it on constitutional grounds.

This week, rumors circulated that the Obama Administration may file a legal challenge to Arizona’s infamous immigration law. Although suits have already been filed by the capable lawyers at the ACLU, MALDEF, and other civil rights organizations, it is essential for the U.S. Department of Justice to become involved. That’s because Arizona’s law isn’t as clearly unconstitutional as many people first suggested. Without active opposition by Justice, the law might very well survive legal challenge.

The main argument against the law is that a state like Arizona has no business regulating immigration. The Constitution vests Congress with broad authority over immigration matters and, critics of the Arizona law claim, the states can’t adopt laws affecting immigration on their own. State laws in this area are, in constitutional jargon, “preempted” by federal immigration law.

Arizona’s new immigration law deserves to be consigned to the historical dustbin.

But preemption isn’t that straightforward. For decades, the Supreme Court has held that states can adopt laws that target illegal aliens so long as the laws are not contrary to federal immigration policy. If a state passes a law that furthers federal immigration policy, the courts will allow it.

Arguably, that is what the Arizona immigration law does. According to its backers, the law merely assists in the enforcement of existing federal laws against undocumented aliens. Under current federal law, illegal aliens are subject to arrest, detention, and deportation for being here unlawfully. The Arizona law is designed to further that federal policy, its supporters say, by instructing Arizona police officers who have “reasonable suspicion” that a person is undocumented to query the person and, if the person is in the United States illegally, turn him over to federal authorities.

The Arizona law was written with preemption in mind. “The law was carefully drafted to avoid any legal challenge on preemption in two ways,” explains Kris Kobach, a law professor who helped write the law. “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,” says Kobach. “As long as the state or city is relying on the federal government to determine immigration status, that will protect against a preemption challenge.”

Arizona has played the immigration preemption game before—and won. In 2007, the state passed the Legal Arizona Workers Act, which imposes state penalties on employers who hire illegal aliens. The law was challenged by civil rights and business groups on preemption grounds but was upheld by the famously left-leaning U.S. Court of Appeals for the Ninth Circuit. The court said that the 2007 law was constitutional because it was “premised on enforcement of federal standards as embodied in federal immigration law.”

Some of the early critics of the Arizona law argued the law veered away from federal standards by imposing new state law criminal penalties for unlawful presence in the state. As initially drafted, the Arizona law would have subjected undocumented aliens to prosecution for “trespass” in the state. Such criminal penalties, which don’t exist at the federal level, deviated from federal policy and would have clearly been preempted. But the trespass provisions were removed from the law before it was voted on by the Arizona legislature.

Others have claimed that the law is unconstitutional because it will encourage racial profiling. While that seems certain to be the effect in practice, that’s a hard claim to prove in court. The law, which the Arizona legislature revised for this very reason, now explicitly states that police may not consider race as a factor in determining whom to question. Individuals stopped because of their race will have a civil rights lawsuit against the officer, but it’s not clear the law itself—rather than the misapplication of the law by officers—is the problem.

If the Department of Justice files suit, the chances of Arizona’s law being invalidated increase significantly. The president is in change of enforcing federal immigration laws and if he claims Arizona’s law is inconsistent with federal policy, the courts are more likely to listen. Justice lawyers might argue, for example, that Arizona law will force the federal government to expend resources processing the large number of illegal aliens caught in Arizona that the federal government would prefer to spend elsewhere, like securing the border. That kind of argument is harder for private civil rights groups like the ACLU to make persuasively.

Arizona’s new immigration law deserves to be consigned to the historical dustbin. But if the Obama administration stays on the sidelines, don’t be surprised if the federal courts refuse to send it there.

Adam Winkler is a constitutional law professor at UCLA.