Reporting from Washington — Arizona's law giving local police immigration enforcement powers is likely to be struck down, most legal experts predict, now that the Obama administration has gone to court asserting that it conflicts with federal law.
They cite the longstanding principle that the federal government has exclusive control over immigration and that "no state can add or take away" from the policy set in Washington.
However, they caution that one large uncertainty is that the current Supreme Court has not ruled directly on such a state-federal clash over immigration.
Traditionally, the federal government's view carries extra weight in disputes over immigration.
"It's one thing for MALDEF [Mexican American Legal Defense and Educational Fund] or the ACLU to say this [Arizona law] interferes with federal policy. It is quite a different thing when the federal government goes to court and says it," said Jack Chin, a University of Arizona law professor. "The clear rule has been that states do not have the power to regulate immigration."
Arizona's leaders have said their law does not conflict with federal immigration policy. However, the Justice Department argued that the state exceeded its authority by making it a state crime for an illegal immigrant to apply for a job or to be caught without immigration papers. Such "unlawful presence" is a civil violation, not a federal crime, and thus the state cannot make this immigration violation into a crime, the department contended.
The administration also asserted that the federal policy is to target "dangerous aliens" such as violent criminals, fugitives and gang members, rather than to arrest and deport the millions of illegal immigrants living in this country.
"There is a tension between the federal policy and the state of Arizona," said Washington lawyer Paul Virtue, former general counsel for the Immigration and Naturalization Service, an agency that no longer exists. "The state is setting different priorities and different penalties."
The Constitution authorizes Congress to set a "uniform rule of naturalization" and says the laws of the United States are the "supreme law of the land." The Justice Department cites this basic provision in arguing why the Arizona law should be declared "invalid, null and void."
In one famous case, the Supreme Court in 1941 threw out a Pennsylvania law that required immigrants to carry an "alien identification card." The justices ruled that the state had no such authority.
In recent years, some states and cities have sought to enforce restrictions on illegal immigrants on the basis that the federal government had failed to enforce the existing laws.
Most of those efforts have run aground, however. A federal judge in Los Angeles blocked California's Proposition 187 from taking effect in 1994 on the grounds that it regulated immigration. The state dropped its appeal before the case was decided by an appellate court. Three years ago, a federal judge blocked Hazleton, Pa., from prohibiting illegal immigrants from renting housing.
Some legal experts think the Supreme Court may be ready to reconsider the issue.
"This is an unsettled area of constitutional jurisprudence. The last major pronouncement on the question was against a completely different landscape," said Temple University law professor Peter Spiro. The justices "may be willing to cut [states] some slack in the face of Washington's now persistent failure to deal with immigration reform."
On June 28, the high court announced it will hear a separate Arizona immigration case in the fall. The Arizona Legislature voted to take away the business licenses of employers who continue to knowingly hire illegal workers. To the surprise of many, a federal district court judge and the U.S. 9th Circuit Court of Appeals upheld that law, citing a provision in the 1996 law passed by Congress.
The U.S. Chamber of Commerce appealed and won the backing of the Obama administration. The court then voted to hear the case.
The current court also may view more favorably the Arizona law giving police more arrest authority.
"It wouldn't surprise me that five members of the court would think that the mere enforcement of immigration law does not change immigration law," said John Eastman, dean of the Chapman University School of Law.
Arizona's lawyers say their law, due to take effect July 29, would not conflict with federal law because it authorizes police during a lawful stop to question a person when there is a "reasonable suspicion" he or she is here illegally.
If a judge blocks the measure from taking effect, the state can immediately appeal to the 9th Circuit Court. The state may also seek a quick appeal to the U.S. Supreme Court if that fails.