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Issue & Argument – US vs. AZ

July 7, 2010

(AP) — The federal lawsuit against Arizona’s tough new immigration law focuses heavily on a question that has been in the spotlight repeatedly the past decade and dates back to the Founding Fathers: The right of the government to keep states from enacting laws that usurp federal authority.

The lawsuit sidestepped concerns about the potential for racial profiling and civil rights violations most often raised by immigration advocates. “Preemption,” which is based on the Constitution’s “supremacy clause” states that federal law trumps state statutes. Team Obama will argue that enforcing immigration laws is a federal responsibility.


The filing is expected to include declarations from other US agencies saying that the Arizona law would place a undue burden on their ability to enforce immigration laws nationwide, because Arizona police are expected to refer so many illegal immigrants to federal authorities. And, after all his incendiary talk he bases the lawsuit on Federal premption. No counts claiming discrimination or profiling.

The Complaint sets forth three counts:

  • Violation of the Supremacy Clause;
  • Federal pre-emption; and
  • Violation of the Commerce Clause.

The Feds have requested an injunction pending a final determination of the Constitutionality of the law… or in lawyer speak, a declaratory judgment that Arizona law is null and a preliminary and permanent injunction against enforcement of the law. It also seeks costs against the State of Arizona.

To obtain a preliminary injunction, the federal government must meet each part of a four prong test: (1) a substantial likelihood of success on the merits; (2) a substantial threat that failure to grant the injunction will result in irreparable injury; (3) that the threatened injury outweighs any damage that the injunction may cause the opposing party; and (4) that the injunction will not disserve the public interest. Just as Judge Feldman did in blocking Obama’s moratorium on offshore drilling, the Court in this Arizona case will balance the injury on the parties and consider the impact the injunction will have on “the public interest.”


Funny, I have yet to see Congress write a law saying it shouldn’t be enforced, which is what these bozo’s are doing. If AZ has some smart lawyers, and it is my understanding that Gov.Brewer has retained outside counsel on this matter so they’re probably in the top tier of legal talent in AZ, it should be fun to read their response to this political swill by Team Obama.

This is a loser for the Administration no matter the outcome. People are in favor of the AZ law and for good reason. This puts the Administration on the wrong side of the issue which is a good thing. I think in defense, the state of Arizona should seek costs against Obama and AG Holder, personally, for they are not acting as agents of their offices or the government, for if they were, they would already be enforcing the federal law making the state law unnecessary.

If the court finds that Federal immigration law pre-empts the Arizona law, then that’s the end of the game. But, I would be very surprised. The key damage AG Holder hopes to do is to enforce a ban on implementation throughout the November elections and possibly to 2012 for Obama’s re-coronation. Could the ONLY purpose of this be to delay as long as possible, maybe hoping they can get amnesty shoved through congress before Nov? AZ could easily put on a dog and pony show during the trial by rounding up known drug/coyotes and charging them under State law. That would make a nice backdrop to AG Holders show trial. Regardless, any actions by the Obama Justice Dept. is going to become a tinder box.

But, the Feds have not “occupied the field” in terms of enforcement, and the Arizona law doesn’t supplant any part of the federal law, so I don’t see how the DOJ wins this. And, it was pretty ballsy of the DOJ to seek costs from Arizona. How much does the Federal gov’t owe Arizona for jailing, feeding, policing and educating the illegal aliens that the feds have failed to deal with?

Given the fact that the federal gov’t has all but abandoned the enforcement of immigration law, and I think Arizona should be able to provide ample evidence of this, I’d suggest the preemption clause won’t be applicable since the laws aren’t being enforced. In fact, I think Arizona can argue and make a pretty compelling case of federal nonfeasance concerning immigration laws. In that case, this may very well blow up in Team Obama’s face, and verify what most Americans already think – the gov’t has no interest in enforcing the immigration laws on the books. Not exactly the meme you want out there with midterms approaching.

Team Obozo isn’t trying to claim civil rights violations (profiling) which indicates to me that they know that despite their rhetoric, that claim is ridiculous on its face. Nice try. If you’re going to play the race card in the public domain, you need to be able to back it up, champ. Do as I do, not as I say. I guess my question is does AZ have any standing to sue the Feds over failure to enforce the law, given the consequences of that dereliction of duty? I fail to see how preemption prevents a state from creating a copy of federal law, as long as the state law does not contradict federal law. If there was a conflict between the state and federal law, then federal law would overrule state law, but that is not the case here.

Can the feds truly argue they’ve preempted the states in this area if they haven’t done any enforcement in recent years? What is the logic of the Feds passing a law, failing to enforce the law, then effectively banning the states from enforcing it? There is nothing in the Arizona law which is in conflict with Federal law. The state law EXPRESSLY honors the Fed’s power to deport, hold on immigration violations, etc.  It compliments Federal law only.

If it succeeds, does that mean the States can not enforce federal laws? How the Arizona law could interfere with the asylum process they mention in the Brief is a question to me considering that AZ can’t actually deport anyone; they’re just a stopping point to the DHS and once the DHS takes possession, they decide what to do. But, is this any different than enforcing other federal laws at the local level? Let’s take counterfeiting for example. Wouldn’t local police be obligated to arrest counterfeiters? Are all state drug laws now null and void, as the Feds have laws that preempt them? This will be interesting.

The case is assigned to Judge Neil V. Wake. Nominated by President Bush on Oct. 22, 2003, Mr. Wake had his hearing before the Senate Judiciary Committee on Jan. 22, 2004, and was favorably reported out of committee on March 4, 2004.

A Phoenix native, Mr. Wake, 55, had been in private practice, specializing in commercial, administrative and constitutional litigation, appellate practice and Indian law. He served as a judge pro tempore on the Arizona Court of Appeals in 1985, 1992 and 1996-98, and is co-author of the Arizona Appellate Handbook.

At least Judge Wake isn’t a left-wing liberal judge appointment by Obama or Clinton, so we know it will be a fair trial at least that is based on rule of law. I was worried this thing might get political as the tyrants that rule us move farther into the rule of the abyss.

The governor, Ms Brewer, has retained Snell & Wilmer, one of the top drawer firms in Phoenix. If they are not the best law firm in Arizona, they’re certainly tied for first place with any other “best” firm in AZ. But in the real world, it’s not the firm (which is important in that it provides backup resources) but the individual lawyer handling the case. I hope Ms. Brewer got the pick of the litigating litter from Snell & Wilmer.

This will be about law, and only law. The politics will be played out in the court of public opinion. And, I bet this goes on for a while – eventually it will make it to the big league.  But first, this filing falls within the purview of the 9th circuit. The 9th is no friend to original intent… Brewer’s not going to back down.


See what Michelle Malkin has to say about this.

See what Rosemary Jenks at Numbers USA has to say about this.

See what Ed Morrissey of Hot Air has to say about this.

Five things you can do about the Obama administration suing over Arizona’s immigration law.

One Comment leave one →
  1. July 7, 2010 3:09 pm

    I pray it does blow up in Team Obama’s collective faces. They are so infuriating.

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