Tuesday, July 6, 2010

Obama's Lawsuit Against Arizona (Updated)

Obama's Department of Justice (DOJ) is set to file its lawsuit against Arizona, seeking to have Arizona's recently enacted state law dealing with illegal aliens held unconstitutional. According to the Washington Post, the DOJ's argument will be two-fold, that the Arizona law is "preempted" by federal law and that "the Arizona law would lead to police harassment of U.S. citizens and foreigners." It is enough to make one's skin crawl.

The "harassment" claim is a non-starter. To win on this challenge, DOJ must show that there is no possible way the Arizona law could be lawfully applied. But, as William Jacobsen at Legal Insurrection has previously pointed out, the Arizona law "does not authorize unlawful stops, but only permits verification of immigration status once a lawful stop has been made. . . . Nothing in the law authorizes stopping people because of their skin color. The law simply provides guidelines as to what is permissible in accordance with federal law, and the procedures that should be used." Clearly there is nothing on the face of the Arizona law that would make it amenable to a challenge on equal protection grounds. The fact that the law might be misapplied does not come anywhere near the standard a Court would need to find in order to hold the Arizona law facially unconstitutional.

But then there is the DOJ's other grounds - the legal theory of "preemption." That theory derives from the Art. VI of the Constitution, wherein it provides that federal law shall be the "supreme Law of the Land." Thus, state laws are preempted and held unconstitutional when there is a conflict between state and federal law or when the federal law in a particular area is all-encompassing and was intended, expressly or by implication, to supplant all state laws on the topic.

Invoking preemption in the present context is a dangerous game indeed. It is critically important to note that the Arizona law is nothing more than a codification of federal law as regards illegal aliens, with the only addition being instructions on when the police can pursue suspicions that a person may be an illegal alien. Thus the DOJ's argument must be that any state laws predicated on the status of an individual as a citizen or an illegal alien are preempted by federal law.

Think about that for a moment. If the DOJ wins this lawsuit, only the federal government will be able to enforce laws based on illegal aliens. We will become, in essence, a sanctuary country with states, for all intents and purposes, constitutionally prevented from inquiring into the citizenship status of people within their states. As a nation, our ability to address the problems of illegal aliens, already bad now, would be compounded exponentially.

And all for what? To protect the rights of Americans? Hardly. Michael Ramierez, in his cartoon at the top of the page, hits the nail on the head. It is so the left can gain more votes.

But Obama is not courting the entire Hispanic population for votes. He is courting the "La Raza" element of the Hispanics - radical separatists who, on the basis of race, would like to see the U.S. deconstructed. It is they who are vociferously challenging the enforcement of our immigration laws. Of course, they are aided and abetted by their far left allies, Obama and the ACLU chief among them. No surprise really. The same thing has been going on in Europe for decades as the borders have been thrown open to immigration from Muslim countries for the purpose of increasing the far left's voter base. The fact that this process is changing the fundamental nature of many European countries, Britain in particular, matters not a wit to the Euro-left. It is clear that our far left is equally unconcerned with similar problems in America.

We have seen the far left prioritize their raw desire for political power over our country's national security as they attempted, between 2006 and 2009, to legislate Iraq into a defeat for our military, winning for al Qaeda and Iran what neither could win on the battlefield. The ramifications, had our far left succeeded, would have been devastating. And now we see the far left pursuing a course as to illegal aliens that has nearly as much potential for adverse long term consequences to our nation. God help us but 2012 can't come quick enough.

Update: The law suit has been filed. You can find the Complaint here. Interestingly, it is, for all practical purposes, entirely predicated on the preemption argument. The Obama DOJ has omitted any argument that the Arizona law is facially unconstitutional on equal protection grounds - i.e., the "harassment" / civil rights argument. That is not exactly a surprise. They would have been laughed out of Court on that one.

Do read the Complaint - and in particular, paragraph number 4, which states the bases upon which the DOJ claims that Arizona's law conflicts with federal law. These bases are breathtaking in part for their arrogance, in part for their frivolousness. The bases include:

1. The DOJ states that it does not want to have to deal with illegal aliens as a group since the federal government is focused on those "aliens who pose a threat to national security or public safety." So illegal immigration laws under the Obama administration are superfulous as, absent something more, the DOJ claims that enforcing those laws will be a misuse of their time and will detract from their 'focused' efforts. It is a ludicrous argument on multiple levels. For one, the federal government has a duty to enforce the laws - not to pick and choose which laws to enforce and when. Two, nothing that the Arizona police do to arrest, investigate and hold an individual for being an illegal alien implicates in the slightest any federal resources. Three, perhaps the simplest of all criminal matters is to determine whether a person is in America legally. Our government controls all of the relevant databases. Four, how does the federal government identify an illegal alien as a high priority? If a foreign national slips into the U.S. illegally, they are by definition below the radar and no one is looking for them specifically. If they come up on the radar for national security or public safety concerns, then it is not federal immigration searching for them, but the police and FBI, just as with any criminal suspect. I eagerly await to see what facts the DOJ dreams up to support this red herring.

2. The DOJ asserts that the Arizona law will result in people being arrested simply for failing to carry their documentation. The law requiring people in the U.S. on a passport or a green card to carry their "papers" with them at all time is federal law. Arizona's law merely mirrors the federal law. In other words, the DOJ is now arguing that a federal law is prima facie of no effect and should be ignored. This argument is jaw dropping.

3. The DOJ claims that enforcing the Arizona law will conflict with federal law regarding "the registration, smuggling and employment" of aliens. They do so without a hint of explanation. Given that Arizona's law is a codification of federal law, it is tough to tease a logical argument out of this contention, let alone a legally valid one.

4. DOJ claims that Arizona, in enforcing their law, will "ignore humanitarian concerns . . ." The DOJ cites to the case of an individual who is seeking asylum on the grounds that they are threatened with harm by their home government for political reasons. This is ridiculous. Any illegal can make a claim for asylum on this basis after arrest and prior to deportation, thus making this argument a nullity in any case. That aside, the DOJ argument, taken to its logical conclusion, would mean that we should no longer arrest illegal aliens, as we should presume that they all have valid arguments for asylum.

5. The DOJ claims that enforcement of Arizona's laws "will interfere with vital foreign policy and national security interests by disrupting the United States' relationship with Mexico and other countries." How much is wrong with that claim? We can't control our border or it will upset Mexico? We can't enforce our own immigration laws - ones that are far less draconian than Mexico's - for fear of upsetting Mexico? Is Obama's DOJ actually making the argument that Mexico has a valid foreign policy interest in the U.S. maintaining an open border? This is beyond belief. Does anyone in the Obama administration put America and its citizenry first in any of their calculations?

Bottom line, if this is all the DOJ has, they should be tossed out of Court for failing to state a case and the DOJ sanctioned for filing a frivolous law suit.


suek said...

"We will become, in essence, a sanctuary country with states, for all intents and purposes, constitutionally prevented from inquiring into the citizenship status of people within their states."

Which kind of automatically will give them carte blanche to vote, as I see it.

I do like the comparison with bank robbery, which is also a federal crime. If you prohibit local police from enforcing immigration law, can they also assume prohibition from responding to bank robberies? If not, how does the local police force decide which federal laws to enforce, and which to ignore??

Arbitrary application of laws = corruption.

Always On Watch said...

I can't imagine that the DOJ will win this law suit.

On the other hand, there are a lot of Obamaphiles sitting on the bench these days.