Obama Administration Files Suit Against Arizona – An Analysis of The AP Article

McAuley’s World Comments Bolded Blue:

First: The “Complaint” or lawsuit can be viewed here: http://legaltimes.typepad.com/files/usa_v_arizona.pdf

The 25 page lawsuit fails to mention “racial profiling” or “discrimination” even once, giving light to the fact that the Obama Administration knew the claims of “profiling” and “discrimination” to be false from the very beginning – The Administration’s failure to even allege “discrimination” or to allege “racial profiling” in the suit, proves that those false claims were known to be false, in fact, the claims were nothing more than the Obama Administration’s “playing of the race card” in an attempt to exploit racial divisions in this Country for their political advantage.

The DOJ suit rests solely on a claim that the Arizona Law is pre-empted by Congress’ right to formulate immigration quotas and immigration criteria for foreign nationals to be admitted to the U.S..

The lawsuit fails to acknowledge or mention the numerous areas of “concurrent jurisdiction” over our immigration laws shared by the Federal and State Governments. The “suit” reads as if the “drafters” of the suit had never read the 1996 Comprehensive Immigration Reform Act.

See: https://mcauleysworld.wordpress.com/2010/07/06/the-immigration-debate-the-arizona-immigration-law-concurrent-federal-state-juridiction-operation-stone-garden-scaap/

and this from the official web site of Immigration Control & Enforcement (ICE):


Feds Vs. State Again in Suit Against Arizona Law

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.

[In this article and in many of the “TV talk shows” the use of the term “Federal Government” has been rather loose. Remember that the “Federal Government” consists of three equal branches, The Executive Branch – headed by the President, The Congress and the Judiciary, or Courts who will decide who is correct in this lawsuit. This suit against Arizona has been filed by the Executive Branch, while the Immigration Laws to which it refers have been passed by Congress, not the Executive Branch. When the Executive Branch claims in the lawsuit, (page 1, lines 26-28) that, “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 Executive Branch is stating the truth, however, the branch of the Federal Government with that “preeminent authority” is the Congress and not the Executive Branch. http://www1.umn.edu/humanrts/immigrationlaw/chapter2.html ]

The lawsuit filed in Phoenix federal court on Tuesday sidestepped concerns about the potential for racial profiling and civil rights violations most often raised by immigration advocates. Experts said those are weaker arguments that don’t belong in a legal challenge brought by the White House to get the measure struck down.

Instead, the suit lays out why the government believes that immigration laws passed by Congress and enforced by a range of federal agencies must take precedence to any passed by a state Legislature.

[The Complaint filed to initiate this lawsuit presents only one side of the story. The Complaint does not recognize that the U.S. Congress has passed a host of laws “delegating” immigration law enforcement to the States and their Law Enforcement Officers. See this from the Official Web site of ICE, the U.S. Immigration Control and Enforcement Administration – a post by a subdivision of the Department of Homeland Security, discussing Section 287(g), Immigration and Nationality Act of 1996; Delegation of Immigration Authority :  http://www.ice.gov/pi/news/factsheets/070622factsheet287gprogover.htm ]

The Arizona law requires officers, while enforcing other laws, to question a person’s immigration status if there’s a reasonable suspicion that they are here illegally, such as speaking poor English, traveling in an overcrowded vehicle or hanging out in an area where immigrants typically congregate.

[The Arizona law references none of the given examples as “proper” examples of “reasonable suspicion”, these examples are a residue of the previous and false charges that the law will result in racial profiling. See: https://mcauleysworld.wordpress.com/2010/05/05/the-immigration-debate-arizonas-law-facts-from-fiction-are-you-tired-of-being-lied-to/ First, the Arizona law provides for ending any discussion of “immigration status” by having a suspect produce a piece of ID, the law specifically identifies 11 different types of ID that will create a “presumption” that the suspect is a “legal resident” and bring the discussion of “immigration status” to an end.  

The law also makes it a state crime for legal immigrants to not carry their immigration documents.

[The Federal Law requiring legal immigrants to carry their documents has been in existence for decades, soon that requirement will be 100 years old]

Backers of the law say the crackdown is a necessary tool to keep illegal immigrants out of Arizona and combat problems such as drug trafficking, murders and violent kidnappings that have become so common in a state that is home to an estimated 460,000 undocumented residents.

[“A crackdown” is the term used by those who oppose the law, when they ascribe “motives” to the laws supporters. The Arizona law is, simply, a basic law enforcement tool, a necessary law enforcement tool, if one plans on enforcing any of our immigration laws or Arizona State laws. At the heart of this lawsuit is the basic act of asking a criminal suspect to produce identification, something that is asked of suspects all over this country, everyday of the week, 52 weeks a year. Why should someone “suspected” of being in the Country illegally be excluded from questioning? Why is Arizona’s “good faith” effort to enforce the laws of the Country a “crack-down”. Arizona’s enforcement of our immigration laws is only a “crack-down” if you contrast Arizona’s activity with, say, the City of Los Angeles, a Sanctuary City, that is in open violation of our Immigration laws. A City that provides ‘Sanctuary” for members of Mexico’s notorious Drug Cartels, a City that openly embraces the Cartel’s ancillary “drug gangs” like MS -13. The Obama Administration has not filed suit against a single “Sanctuary City”, cities that are flouting our immigration laws and providing “sanctuary” to the bloody killers of the Mexican Cartels. ]

The federal government will ask a judge to grant an injunction to block the law from taking effect on July 29.

The arguments will focus on a core constitutional concern — balancing power between the states and the federal government. More specifically, the issue centers on the long-running “pre-emption” legal argument that says federal law trumps state law.

[Yes, Federal law can trump state law, however, Federal law can also share “concurrent authority” with State Law and in other instances, Federal Law is replaced by State law.]

“The nation’s immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests,” the suit says.

[A typical “wishful thinking” comment from someone who has spent their legal career in an “ivory tower” and not in the Immigration Courts or the Halls of Congress. Like so many of our laws, immigration law is often a ‘comprise” reached between competing interests in Congress. That is why our Supreme Court grants such deference to the Immigration Laws passed by Congress: http://www.fairus.org/site/PageServer?pagename=research_research397d]

The lawsuit goes on to say that 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 “immigration policy” reserved for the Federal Government, specifically reserved for the Congressional Branch of the Federal Government, is the power to “regulate” immigration, regulate by setting “quotas” and other “criteria” by which to judge those seeking admission to the Country and to set “standards” that must be met prior to gaining admission. http://www1.umn.edu/humanrts/immigrationlaw/chapter2.html

The Arizona law does not set a single quota. The Arizona law doesn’t establish a single criteria or standard to be applied to anyone. Simply put, the Arizona Law allows Arizona Law Enforcement Officers to ask for suspects to identify themselves, a necessary first step in determining whether any of the Country’s immigration laws might apply and whether the suspect currently being questioned may have violated one of those laws.]    

Backers of the law say that Arizona will have some strong arguments in its favor in fighting the lawsuit.

Kris Kobach, the University of Missouri-Kansas City law professor who helped draft the Arizona law, has said the state law is only prohibiting conduct already illegal under federal law. And Harvard Law School professor Gerald Neuman believes Arizona could make a compelling legal argument that it has overlapping authority to protect its residents.

[ https://mcauleysworld.wordpress.com/2010/05/05/the-immigration-debate-arizonas-law-facts-from-fiction-are-you-tired-of-being-lied-to/ ]

But courts have ruled that under the Supremacy Clause of the Constitution, any state law that conflicts with a federal law is pre-empted. Federal law, the framers said, “shall be the supreme law of the land.”

[Except of course, where the framers of the Constitution said, “Any power not specifically granted to the Federal Government is reserved to the States’]

The pre-emption tactic has been successfully used by the federal government on several occasions over the years, including by the Bush administration to limit product liability lawsuits. The government also used it to overturn bans on military recruiters passed by liberal California towns.

[I am surprised that the author of this article didn’t mention Supreme Court Nominee Kagan, given the fact that Nominee Kagan challenged this very issue while she was Dean of Harvard Law and lost her case before the U.S. Supreme Court]

Federal courts have invoked the Supremacy Clause on immigration issues as well. For example, a federal judge in 2008 struck down a Dallas suburb’s ordinance that banned apartment rentals to illegal immigrants, saying the U.S. government has the ultimate authority to enforce immigration laws.

[The Obama Administration has also asked the Supreme Court to review Arizona legislation aimed at enforcing Federal laws that make it illegal to hire undocumented or “illegal aliens”. The Obama Administration is, if nothing else, consistent on this issue. The Administration refuses to enforce any of our immigration laws.  “The Obama administration on Friday urged the Supreme Court to review and set aside an Arizona law that sanctions employers who hire illegal immigrants, saying it would disrupt the “careful balance” that Congress struck in federal immigration law.” http://www.washingtonpost.com/wp-dyn/content/article/2010/05/28/AR2010052804319.html  ]

Despite the precedent, that doesn’t mean the lawsuit is a sure winner, or that state officials don’t believe they can pass laws that head into federal turf.

In fact, efforts by many states trying to block the nation’s new health care law run headlong into the Constitution’s Supremacy Clause. But immigration is one area where federal authority has generally been upheld.

[Upheld with many limitations: The Supremacy Clause of the Constitution also requires the States to, “enforce violations of the federal immigration laws.”The statutory law of the United States is part of the law of each state just as if it were written into state statutory law.” In 1999 a decision in the Tenth Circuit Court of Appeals upheld the independent authority of local police departments to enforce federal immigration lawhttp://www.fairus.org/site/PageServer?pagename=research_research397d  ]

“Immigration has traditionally and constitutionally been the historic preserve of the federal government, and there are cases going back to the late 19th century that say as much,” said Peter Spiro, a constitutional law professor at Temple University who has studied immigration law extensively. “So the Obama Administration has a lot to work with in filing this claim, and the fact that the claim is filed by the administration adds credibility … and increases the chances that law will be struck down on pre-emption grounds.

[With the exception being, the Congress, the Branch of the Federal Government that holds the power of regulating immigration, has in fact, delegated a good deal of the “enforcement responsibility to the States and State Law Enforcement Authorities.  Department of Homeland Security, discussing Section 287(g), Immigration and Nationality Act; Delegation of Immigration Authority : http://www.ice.gov/pi/news/factsheets/070622factsheet287gprogover.htm  ]

“That said, it not by any means a slam dunk,” Spiro said.

Regardless of how the case is determined at the district court level, it will likely be appealed. The U.S. Supreme Court is already set to hear an Arizona immigration case in the fall when it takes up a challenge to a 2007 state law punishing employers who knowingly hire illegal immigrants.

[ http://www.washingtonpost.com/wp-dyn/content/article/2010/05/28/AR2010052804319.html  ]

If the high court doesn’t issue a broad ruling on states’ rights to implement laws on immigration in that case, prepare to see the case filed Tuesday make it to the justices, Spiro said.

“It’s clearly an important case. The Arizona law is unprecedented in its aggressive posture towards illegal immigrants. It’s an important issue federally, really, that’s the way the administration is framing it. They say the states do not have this kind of role as far an immigration legislation.”

[“Aggressive”? How is asking someone to identify themselves “aggressive”? How can any law, State or Federal, be enforced without allowing Law Enforcement Officers to question suspects and ask for identification? Clearly, the law is only “aggressive” if your “true” objective is to prevent enforcement of the immigration laws enacted by Congress]


This from the U.S. Department of Immigration Control and Enforcement, A Division of Homeland Security,  on the delegation of immigration authority to State Law Enforcement Officers:

June 22, 2007

Section 287(g), Immigration and Nationality Act; Delegation of Immigration Authority

A Law Enforcement Partnership

Terrorism and criminal activity are most effectively combated through a multi-agency/multi-authority approach that encompasses federal, state and local resources, skills and expertise. State and local law enforcement play a critical role in protecting our homeland security because they are often the first responders on the scene when there is an incident or attack against the United States. During the course of daily duties, they will often encounter foreign-born criminals and immigration violators who pose a threat to national security or public safety.

Section 287(g) of the Immigration and Nationality Act

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), effective September 30, 1996, added Section 287(g), performance of immigration officer functions by state officers and employees, to the Immigration and Nationality Act (INA). This authorizes the secretary of the U.S. Department of Homeland Security (DHS) to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions, pursuant to a Memorandum of Agreement (MOA), provided that the local law enforcement officers receive appropriate training and function under the supervision of sworn U.S. Immigration and Customs Enforcement (ICE) officers.

State and local patrol officers, detectives, investigators and correctional officers working in conjunction with ICE gain: necessary resources and authority to pursue investigations relating to violent crimes, human smuggling, gang/organized crime activity, sexual-related offenses, narcotics smuggling and money laundering; and support in more remote geographical locations.

Memorandum of Agreement

The MOA defines the scope and limitations of the authority to be designated. It also establishes the supervisory structure for the officers working under the cross-designation and prescribes the agreed upon complaint process governing officer conduct during the life of the MOA. Under the statute, ICE will supervise all cross-designated officers when they exercise their immigration authorities. Once the scope of limitations of the MOA has been reached, the assistant secretary of ICE, and the governor, a senior political entity, or the head of the local agency may sign the MOA, requesting the cross-designation.


How, exactly, can this process of “co-operation” and “enforcement” begin, if you deny Law Enforcement Officers the right to question suspects and determine if they are illegal alien criminals?

Authority delegated to the States by Congress cannot be nulified by the Executive Branch as the Executive Branch tries to deny the States the ability to exercise the authority duly extended by Congress. If the Executive Branch wants to reverse our existing Immigration Law and implement an “amnesty” and “open borders” policy,  let the Executive Branch pass such changes through Congress as required by our Constitution and not attempt to usurp the power of Congress to write the Country’s immigration laws through the dereliction of duty by the Executive Branch as it refuses to enforce the immigrations laws passed by Congress.

Also See: 

THE QUINTESSENTIAL FORCE MULTIPLIER: THE INHERENT AUTHORITY OF LOCAL POLICE TO MAKEIMMIGRATION ARRESTS: By Kris W. Kobach; Professor of Law, University of Missouri (Kansas City) School of Law. A.B. 1988, Harvard University; M.Phil. 1990, Oxford University; D.Phil. 1992, Oxford University; J.D. 1995, Yale Law School.


On 04/23/2002 the DOJ (Department of Justice) issued a memorandum discussing  the very issues upon which the Obama Administration has based the current law suit against Arizona ….. in 2002 the DOJ clearly stated that concurrent enforcement of either civil or criminal violations of Federal Immigration laws was not, in fact, preempted or reserved under the supremacy clause of the Constitution or any Federal Statute.

2002 DOJ Memo

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