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Justice Department sues Arizona over immigration law

By Jerry Markon and Michael D. Shear
Washington Post Staff Writer
Wednesday, July 7, 2010; A01

The Obama administration sued Arizona over the state's new immigration law on Tuesday, an assertion of federal power that sets up a rare clash with a state on one of the nation's most divisive political issues.

The Justice Department lawsuit charges that the Arizona law cracking down on illegal immigrants conflicts with federal law, would disrupt immigration enforcement and would lead to police harassment of those who cannot prove their lawful status. Filed in federal court in Arizona, it says the state's measure is unconstitutional and asks a judge to stop it from taking effect.

"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 lawsuit says.

The Arizona law, signed by Gov. Jan Brewer (R) in April, gives police the power to question anyone who they have a "reasonable suspicion" is an illegal immigrant.

In challenging a state law, federal lawyers stepped squarely into the politically charged debate over how to handle the nation's estimated 12 million illegal immigrants. Reaction to the suit poured in from all sides, much of it blistering, making it clear that this was no ordinary legal filing but rather the start of a battle that will help define the midterm elections this fall.

"Not only does this lawsuit reveal the Obama administration's contempt for immigration laws and the people of Arizona, it reveals contempt for the majority of the American people who support Arizona's efforts," 20 House Republicans said in a letter to Attorney General Eric H. Holder Jr., who administration officials said decided last week to challenge the law. President Obama, who had voiced strong opposition to the legislation, was briefed in the past few days, officials said.

The administration disavowed any political calculus, with one senior Justice Department official saying: "We're charged not with doing what's popular or partisan or political, but doing what we think is right."

But other Democrats suggested that the legal fight could play to their advantage by placing them on the side of Hispanics, the nation's fastest-growing minority. Though most polls show the Arizona law is broadly popular, leading Hispanic groups and politicians have condemned it.

"There is probably some short-term pain politically," said one senior Democratic strategist, who spoke on the condition of anonymity because he did not want to publicly contradict the administration. "But considering the demographic changes the country is undergoing, long term there is a lot of upside in advocating for Latinos and comprehensive immigration reform."

Criticism on civil rights

Civil rights groups call Arizona's statute the nation's toughest law against illegal immigrants and say it targets Hispanics, though the legislation says police "may not consider race, color or national origin" in seeking to determine immigration status.

At least five other lawsuits have been filed in federal court -- by civil rights groups and others -- challenging the law, which is scheduled to take effect July 29. Hearings are set for July 15 and July 22 in those cases, and Justice Department officials said they expect a hearing around the same time on their motion asking a judge to issue a preliminary injunction blocking the law.

Justice officials cited two other examples of the federal government suing a state, including a 2007 lawsuit by the Bush administration challenging an Illinois law that tried to prevent employers from using an online system to determine immigration status. But legal experts said such a step is exceedingly rare.

"It's quite extraordinary," said Richard D. Friedman, a law professor at the University of Michigan. Typically, he said, the government files briefs or seeks to intervene in lawsuits filed by others against state statutes.

In their 25-page complaint, Justice lawyers cite the legal doctrine of "preemption," which is based on the Constitution's supremacy clause and says federal law trumps state statutes. Because the federal government has "preeminent authority to regulate immigration matters," the lawsuit argues, the Arizona law must be struck down.

A practical argument

Beyond the legal prose, the government tries to make a practical argument: that the Arizona law would unduly burden federal agencies charged with immigration enforcement. With Arizona referring so many illegal immigrants for deportation, the lawsuit says, federal officials would lose focus on top-priority targets such as immigrants involved in terrorism or other crimes.

The suit also claims that the law would burden local law enforcement officials, three of whom provided declarations in support of the challenge. "To require local police to act as immigration agents . . . is not realistic," wrote Tucson Police Chief Roberto VillaseƱor.

Although the lawsuit cites potential "detention and harassment" of U.S. citizens and immigrants who do not carry identification documents, it declines to make a legal argument that the law would lead to racial profiling. But a senior Justice Department official, speaking on the condition of anonymity, said that if the law takes effect, "we will monitor it very, very closely, and if we become aware of any racial profiling or civil rights violations, that's something that we would take action on.''

Peter Spiro, a Temple University law professor and an expert on preemption, said that the government makes "a strong argument" but that the case "could go either way." Although the preemption doctrine has been established in Supreme Court decisions, he said, "there is precedent on both sides of the question."

Brewer called the lawsuit "nothing more than a massive waste of taxpayer funds," a sentiment also expressed by other Republicans. "The American people must wonder whether the Obama administration is really committed to securing the border when it sues a state that is simply trying to protect its people by enforcing immigration law," John McCain and Jon Kyl, Arizona's senators, said in a statement.

Liberal groups were equally fervent. "We commend the Obama administration for taking this critical step to negate Arizona's unconstitutional usurpation of federal authority and its invitation to racial profiling," said Lucas Guttentag, head of the ACLU Immigrants' Rights Project.

Staff researcher Julie Tate contributed to this report.

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