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 it conflicts with federal law.
They cite the long-standing 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 alien to apply for a job or to be caught without registration papers showing immigration status.
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.
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.”
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.”
Arizona’s lawyers say their law, due to take effect July 29, would not conflict with federal law because it authorizes police to question a person when there is a “reasonable suspicion” they are here illegally.
