Memo from 2002 could complicate challenge of Arizona immigration law

By Jerry Markon
Washington Post Staff Writer
Tuesday, May 18, 2010

In the legal battle over Arizona's new immigration law, an ironic subtext has emerged: whether a Bush-era legal opinion complicates a potential Obama administration lawsuit against Arizona.

The document, written in 2002 by the Justice Department's Office of Legal Counsel, concluded that state police officers have "inherent power" to arrest undocumented immigrants for violating federal law. It was issued by Jay S. Bybee, who also helped write controversial memos from the same era that sanctioned harsh interrogation of terrorism suspects.

The author of the Arizona law -- which has drawn strong opposition from top Obama administration officials -- has cited the authority granted in the 2002 memo as a basis for the legislation. The Obama administration has not withdrawn the memo, and some backers of the Arizona law said Monday that because it remains in place, a Justice Department lawsuit against Arizona would be awkward at best.

"The Justice Department's official position as of now is that local law enforcement has the inherent authority to enforce federal immigration law," said Robert Driscoll, a former Justice Department Civil Rights Division official in the George W. Bush administration who represents an Arizona sheriff known for aggressive immigration enforcement. "How can you blame someone for exercising authority that the department says they have?"

The Arizona law, signed by Gov. Jan Brewer (R) last month, makes the "willful failure" to carry immigration documents a crime and empowers police to question anyone if authorities have a "reasonable suspicion" the person is an illegal immigrant. It has drawn words of condemnation from President Obama and intense opposition from civil rights groups, who on Monday filed what they said was the fifth federal lawsuit over the legislation.

Attorney General Eric H. Holder Jr. has said the department is considering a lawsuit against Arizona, and Civil Rights Division lawyers have been studying the law and consulting with some civil rights groups.

"The Civil Rights Division has been working around the clock," said one outside lawyer who has spoken to Justice Department officials. The lawyer spoke on the condition of anonymity because the contacts are not public. "They have a lot of attorneys on it, and they're taking a really hard look at filing their own lawsuit or intervening." Justice Department officials declined to comment Monday beyond saying they are continuing to review the government's legal options.

The 2002 opinion, known as the "inherent authority" memo, reversed a 1996 Office of Legal Counsel opinion from the Clinton administration. "This Office's 1996 advice that federal law precludes state police from arresting aliens on the basis of civil deportability was mistaken," says the 2002 memo, which was released publicly in redacted form in 2005 after civil rights groups sued to obtain it.

Office of Legal Counsel documents do not have the force of law but carry great weight within the executive branch and are considered to be the Justice Department's official position on a legal or constitutional issue.

Cecillia Wang, managing attorney of the ACLU Immigrants' Rights Project -- which filed Monday's lawsuit in federal court in Phoenix along with the NAACP, the National Immigration Law Center and other groups -- said the 2002 memo would not present an obstacle to a Justice Department lawsuit. She said the power that the Arizona law gives to police "goes far beyond" the basic arrest authority cited in the memo.

But Wang renewed the ACLU's call for the Obama Justice Department to withdraw the 2002 memo, which she called legally incorrect. "The fact that this memo is lurking out there gives cover and comfort to people in Arizona and other states who want to pass these overbroad and extraordinary anti-immigration measures," she said.

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