Tuesday, July 6, 2010

DOJ's milquetoast lawsuit against Arizona Immigration Law

You heard it in Ecuador first--the United States Department of Justice is today filing a lawsuit against the State of Arizona, asking the District Court of Arizona to rule the state's new immigration law unconstitutional.

As is noted by Jake Tapper, the suit makes no mention of discrimination at all:

The filing makes no assertion that the law is discriminatory or risks being applied in a discriminatory fashion, as the president and other officials said they feared would be the case. Interestingly, this suit makes no civil rights charges against the Arizona law.

Huh? Wasn't the White House all a twitters about how the carefully crafted Arizona statute could mean that it wasn't safe to take your kids out to have ice cream?  Weren't we hearing all about how chilling it would be to let stand a law that let police stop people on the street for no good reason and demand to see their "papers?"  That's not the story now?  Apparently not.

What the suit claims is that the state is attempting to usurp a constitutionally-enumerated power to regulate immigration and establish a policy of naturalization.  But that's not what the state is doing--at all.  The statute merely grants state law enforcement officers the power to determine immigration status during routine police contact and only if a reasonable suspicion exists.  Hypothetically, that condition of reasonable suspicion is satisfied if, for example, a state highway patrolman sees a car full of 20-something men, speeding while driving erratically, on a highway known to law enforcement as a corridor used by drug dealers and human smugglers.

The state doesn't prosecute any offenders under any state statute.  It turns all offenders over to appropriate federal officials so they can do their jobs.

At Hot Air, Ed Morrissey has a little fun with DOJ's tack:

It would be akin to saying that it’s unconstitutional for local police to respond to a bank robbery in progress because robbing an FDIC-insured bank is a federal crime.

The same would go for preventing police from responding to a kidnapping in progress because kidnapping is a federal crime. 

There are numerous federal regulatory frameworks into which states have stepped into to impose tougher regulatory restrictions than the feds do.  Under the Clean Water Act, the federal government establishes regulatory power over discharges made into the coastal and inland waterways of the U.S.  But states such as Florida have taken not only regulatory duties, but investigation, enforcement and punishment as well.  If the federal government reviewed Florida's NPDES program and decided it was too strict or preempted the federal regulatory scheme, would they have a case?  Isn't Florida advancing the federal objective of improving state water quality with tougher restrictions?  More importantly, isn't Florida actually usurping a federal responsibility by investigating and punishing offenders?

What the Arizona case boils down to is the Department of Justice attempting to force the courts to decide a political argument.  The state of Arizona has told the federal government that the laws are not sufficiently enforced to protect the people of the state.  This is precisely what Florida told EPA decades ago when it announced its own NPDES framework.  This is not a dispute that should be settled in a courtroom.  It's one that should be settled in the ballot box, and we have a fine opportunity to get started this November.

Gimme some feedback in the comments.


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