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Justice Department considers suing Arizona to block immigration law

By Jerry Markon and Anne E. Kornblut
Washington Post Staff Writer
Thursday, April 29, 2010; A03

Officials in the Obama administration are urging the extraordinary step of suing Arizona over its new immigration law, and the Justice Department is considering such an action to block the legislation from taking effect, government officials said Wednesday.

The Arizona law criminalizes illegal immigration by defining it as trespassing and empowers police to question anyone they have a "reasonable suspicion" is an illegal immigrant. President Obama and Attorney General Eric H. Holder Jr. have blasted the legislation, with Obama saying that it "threatened to undermine basic notions of fairness."

"The president had strong words to say and the attorney general had strong words to say," said one law enforcement official, who spoke on the condition of anonymity because no decision has been made. "Considering that it's signed into law, and Arizona is doing a lot of pomp and circumstance, do you see a friendly way out of this?"

A key legal ground being considered, officials said, is the doctrine of "preemption" -- arguing that the state's law illegally intrudes on immigration enforcement, which is a federal responsibility.

The White House probably will make the final call, given that the issue is fraught with legal and political implications. Senior administration officials indicated Wednesday that Holder's remarks about the legislation -- he said he is "very concerned" that it could drive a "wedge" between law enforcement and immigrant communities -- should be taken very seriously.

The law will not take effect until summer, 90 days after the Arizona legislature adjourns. But the Justice Department could be in court by early to mid-May, the officials said.

The prospect of federal lawyers marching into court to challenge a state law would be most unusual, legal specialists said. Typically, the government files briefs or seeks to intervene in lawsuits filed by others against state statutes; federal officials said that could still happen in the Arizona case.

"It's relatively rare for the federal government to directly challenge a state law," said Jonathan Turley, a constitutional law expert at George Washington University Law School, who could not cite a comparable example. "It's even more rare when there is no shortage of people challenging the law." A coalition of civil rights groups announced Wednesday that it is preparing its own suit against Arizona, and officials in Phoenix, Tucson and Flagstaff said they are considering suing the state.

The measure makes Arizona the first state to criminalize illegal immigration by defining it as trespassing, according to the National Conference of State Legislatures. It spells out that police may not "solely consider race, color or national origin" in questioning people about their immigration status. Advocates of the law characterize that provision as forbidding racial profiling, while opponents contend it raises the possibility that race or skin color could be considered with other factors.

With efforts to reform the nation's immigration laws stalled in Congress, a suit would put the administration squarely in the middle of an issue that has divided Americans just months before midterm congressional elections. Federal officials were loath to discuss any political considerations, but a court challenge could energize a Democratic base that strongly opposes the Arizona measure.

Conversely, it could bring opposition from conservatives and "tea party" activists, who have accused the administration of improperly expanding the federal role in financial bailouts and health-care reform. "It would absolutely inflame people," said Rosemary Jenks, director of government relations for NumbersUSA, an Arlington group that calls for tougher immigration enforcement.

"Arizona passed this law because the federal government abdicated its enforcement responsibilities on immigration," said Jenks, a lawyer who says the new law is constitutional. "To now have the federal government come in and say 'You can't do that' is going to outrage a whole lot of people."

Muzaffar Chishti, who directs the Migration Policy Institute's office at New York University Law School, said a federal challenge probably would persuade a judge to declare the law unconstitutional under the preemption doctrine, which has been established in Supreme Court decisions. It is based on the Constitution's supremacy clause, which says federal law trumps state statutes.

The Supreme Court has said that immigration enforcement is principally, though not exclusively, a federal responsibility.

But Kris Kobach, who helped draft the legislation, said similar preemption arguments failed when Arizona passed a 2007 law that sanctioned employers for knowingly hiring illegal immigrants. "They tried this on for size already, and it failed," said Kobach, a senior Justice Department official in the George W. Bush administration who is now a constitutional law professor at the University of Missouri at Kansas City.

Homeland Security Secretary Janet Napolitano indicated in congressional testimony Tuesday that federal reviewers are considering a preemption argument.

"The first thing that needs to be done is for the Justice Department to review whether the law is constitutional under the laws governing the supremacy clause and under the laws governing preemption," she said, adding: "Is it constitutional or not?"

Staff writer Spencer S. Hsu contributed to this report.

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