DOJ’s Unsupported Suit Against Arizona Immigration Law

July 9th, 2010

By Dan Miller

The already bloated doctrine of federal preemption must not be further engorged.

On July 6, 2010, the Holder Justice Department, allegedly without consultation with President Obama, filed suit in federal district court in Arizona to block the new Arizona law intended to enforce existing federal laws against unlawful immigration, something the federal government itself has patently failed to do. The suit asks the court for, among other things, an order restraining Arizona from implementing the new statute later this month as scheduled, pending the outcome of the litigation. It is evident that this was done for partisan political purposes, although it seems quite likely that the political results will not be those which the Obama administration desires.

The suit claims that the new Arizona law was preempted under the Constitution by federal law and is therefore unconstitutional. According to the Justice Department complaint:

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.

The complaint goes on at length to explain these claims. However, as analyzed here, there are no federal statutes on which a claim of preemption could legitimately be made:

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14 Responses to “DOJ’s Unsupported Suit Against Arizona Immigration Law”

  1. Annie Eagle Wing |

    No way would I ever believe Atty. Holder would even go to the toilet without consulting Barack Obama. Nor would I believe the DOJ dismissed the case, after conviction, against the New Black Panthers for Civil Rights Violations at the poll in Philadelphia, Pa. without Obama’s blessing. The Obama administration is dead set against prosecuting black criminals but unleashes it’s DOJ Taliban defense attorney against Arizona and it’s legal citizens.
    There can be no doubt where the president’s heart is and it is not with America. Gutting NASA and eliminating the Shuttle program with no alternative, except to depend on the Russians for a ride, is at least criminal and at most treason in that it endangers our national security.

  2. Dan Miller |

    I can’t immediately find the link, but someone has suggested that the Obama Holder Justice Department sue the sanctuary cities for interfering with the federal government’s enforcement of immigration laws and policy.

    How silly. That might make a bit of sense and is therefore prohibited.

  3. Tom Carter |

    I’ve said before that I don’t like Arizona’s approach to dealing with the problem of illegal immigration, and I still don’t. I think it will result in an unacceptable degree of profiling, no matter how hard they try to avoid it. Personally, I wouldn’t want to be an Hispanic person living in Arizona after the law goes into effect — even if I had been born in the U.S. into a family that had been American citizens for four or five generations.

    I certainly understand the frustrations of people who live on or near the border. The federal government has failed to meet it’s responsibilities for border protection and immigration control, and I’m sure the people of Arizona (and the huge numbers of people who support them) feel they have no other choice. Immigration reform is needed now, and the feds would be well advised to get it done.

    There’s a pathetic pattern going on in the Administration, particularly in regard to DOJ and the Attorney General. The AG is going to sue Arizona and that will have huge political fallout, but the President doesn’t know about it. The AG decides to try KSM in New York (an incredibly stupid decision, as we’ve seen) and the President didn’t know in advance. Either these folks are completely screwed up, or they’re telling some pretty big lies.

  4. Dan Miller |


    I don’t agree that President Obama is so out of touch with reality as to have been unaware of what General Holder was doing. If President Obama did know he is complicit and if he didn’t know he should have and is less competent than I have heretofore considered him. Either way, it’s a mess.

    You may well be correct in contending that the Arizona law will be implemented in an unconstitutional way; I doubt it but have no way to know. It is not scheduled to go into effect until toward the end of this month, and laws can be challenged as unconstitutional on two principal bases: unconstitutional as written, a subset of which includes federal preemption, or unconstitutional as applied.

    The federal complaint filed on July 6th claims federal preemption, which I see as a potentially disastrous slippery slope, for the reasons stated in the article.

    I agree that immigration reform is needed, but the political complexities and differences are probably insuperable now and may become even more so when a new congress convenes next year; what a probably lame duck congress may do between November and then is anybody’s guess but it seems very unlikely to be based on a reasonable compromise or to improve the situation.

    Suing the State of Arizona for what I consider to be its well reasoned, well written and constitutional law, and its and only recourse in the face of federal inaction and/or incompetence, strikes me as absurd.

  5. Tom Carter |

    I think, too, that Obama knows what Holder is doing, particularly on major things like suing Arizona and trying KSM in New York. It’s absurd when they try to claim otherwise. Like I said in the last line of the comment, “Either these folks are completely screwed up, or they’re telling some pretty big lies.”

  6. larry ennis |

    Could it be that this president and his minions don’t really give a rats behind what anyone outside their circle thinks or believes.
    I’ve said all along that this bunch of political hacks have what can only be called a very low regard for the rest of us.
    The Arizona immigration law obviously runs counter to what Obama has in mind. Could it be a chance for him to cultivate more votes for his 2012 second term run? Everyone knows that he favors amnesty, betting that all those that benefit will become Obama supporters?

  7. d |

    Me thinks you got it,Larry. I do believe he thinks they will all become citizens and vote for him. Just like Bush did when he made deals with president Fox,and got the Mexican vote,allowing the turning the other cheek,to illegals flooding in. Guess we just need to annex Mexico,so they can quit being illegal,and then won’t want to come here for illegal activity,and to plunder our free medical and school goodies. They will have their own,which we would still pay for.

  8. larry ennis |

    No legal citizen wants to see hoards of non-citizens push the legals aside and take over.
    The Mexican vote for Bush, as you call it, was from legal Mexicans voters that don’t want the illegal Mexicans here.
    I’d also add that Spanish speaking Cubans are not Mexicans but a lot of them are Republicans and voted for Bush. Some people confuse the two groups.
    D,how many extra jobs do you have in your area. How much more are you willing to pay out in taxes to fund this Presidents programs. Some thing is dreadfully wrong and its only getting worse.

  9. larry ennis |

    Don Quixote???
    Could it be that our DOJ plan to pursue racial profiling as a factor against the Arizona immigration law is just hot air? According to the court ruling laid out below the DOJ like Don Quixote are charging windmills.

    In a 1975 case regarding the Border Patrol’s power to stop vehicles near the U.S.-Mexico border and question the occupants about their citizenship and immigration status, United States v. Brignoni-Ponce, the high court ruled that the “likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.” In 1982 the Arizona Supreme Court agreed, ruling in State v. Graciano that “enforcement of immigration laws often involves a relevant consideration of ethnic factors.”

  10. Dan Miller |


    Unlawful profiling is a possibility, even though expressly prohibited by the Arizona statute. Unlawful profiling is a possibility under any law. Enforcement of speed limits is an easy one. Back when there was a federally mandated 55 mph speed limit, the police (at least in Maryland, where I then lived) routinely didn’t enforce it except when they wanted to; then, they picked some arbitrary number between 55 and 75 and enforced that. They could just as easily have enforced some arbitrary speed limit based on the perceived race, religion, sex, national origin or hair color of the driver. Little red sports cars could have been pulled over more often than big green Oldsmobiles driven at the same speed.

    I got a ticket once for driving 58 mph and keeping up with traffic. The officer refused to tell me what speed limit number he was enforcing that day. For several days thereafter, I drove at exactly 55 mph and it was dangerous; people kept passing me and removing their hands from their steering wheels to suggest an impossible act through some vaguely understood sign language.

    This obviously does not mean that there should be no speed limit laws. I think it means that the police should have one speed limit to enforce, and that it should be whatever the applicable statute says it is; neither faster nor slower, taking into account the accuracy of their radar and other speed measuring equipment.

    If the new Arizona laws are enforced in an unconstitutional manner, and if it is an isolated occurrence, whoever does it should suffer the consequences. If it becomes systemic, then maybe the laws should be declared unconstitutional as applied. We won’t know until the laws go into effect and for awhile after that.

    In the meantime, the feds should chill out; not a bad idea in any event considering the temperatures in D.C. these days.

  11. Brian Bagent |

    Police constantly profile people. It’s how they do their job if they are going to be effective.

    Imagine patroling a neighborhood where burglary is on the rise. You see a guy walking down the street with a pillow or sack of some sort slung over his shoulder at 0200. Guess what? He’s going to jail for the night so he can talk to a burglary and theft detective in the morning. That’s profiling. It happens ALL OF THE TIME, and in all jurisdictions.

    Or you see a car driving down the street with the passenger side window down (maybe it’s busted out, but you can’t quite tell) and it’s raining or very cold or very hot. That car is getting pulled over as a probable stolen. That’s profiling.

    Are brown-skinned people going to get pulled over more frequently in AZ as a result of this law? Probably with no more frequency than they already do, which is probably pretty often to begin with.

    If we’re serious about getting rid of laws that encourage racial profiling, let’s end the idiotic War on (Some) Drugs. How about we actually give burglars 5-99 or life? How about we actually give robbers, rapists, and child molesters 5-99 or life? Well, we can’t because about half of our prison population is in for Mary Jane and/or cocaine.

  12. larry ennis |

    your right in surmising that the Arizona law won’t prove itself good or bad until it goes into effect. That being said, does the DOJ have cause to move against it at this point in time? Evidently neither the President or DOJ have any desire to secure the border.

  13. larry ennis |

    You make a good point. Profiling is a necessary part of day to day life. Be it racial or otherwise, deductive reasoning is the product of being able to mentally arrange facts and thoughts to reach a conclusion.
    Only recently has it became a matter of Constitutional concern.

  14. Dan Miller |

    Larry, I don’t think so. The preemption argument was the best they could make, and I think it will or at least should fail; there is nothing in the Arizona laws, as amended within less than a week after initial enactment, which seems to me to be inconsistent with federal laws. The government’s argument is essentially that it contravenes domestic and foreign policies established by the executive branch and that it will place undue enforcement burdens on the feds.

    Perhaps the state of Arizona should consider a counterclaim, demanding that the U.S. government enforce its own immigration laws. The residents of Arizona are certainly being injured by its failure to do so. Whether that would gain any traction in court, I don’t know. However, it would certainly focus on the problem.

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