American Bar Association jumps into fray early over Arizona immigration law

By Amanda Becker
Monday, July 19, 2010

The American Bar Association has injected itself into the legal battle over a controversial Arizona immigration law that will require local and state law enforcement to determine the immigration status of individuals stopped for other offenses and detain them until they can provide identification.

Though the association usually waits until a legal challenge reaches the highest federal or state court that will consider a case before weighing in on a matter, its president described the statute as a significant legal issue that merited the "extraordinary but not unprecedented" action at the district court level.

Local attorneys from Skadden Arps Slate Meagher & Flom, Covington & Burling and the Lawyers Committee for Civil Rights Under Law are also representing plaintiffs and other interested parties in the legal challenge.

In two friend-of-the-court briefs filed July 14 with a federal court in Phoenix, the bar association argues that the Arizona law is a "clear attempt to usurp exclusive federal authority" in violation of the Constitution, which precludes states from preempting the power of the federal government.

The brief "is not motivated by any particular party or political view," said ABA President Carolyn B. Lamm, a partner at White & Case in the District. "It's very much a constitutional and legal view about the law and the way the system should operate."

The briefs were filed in two legal challenges to the Support Our Law Enforcement and Safe Neighborhoods Act, which was signed into law by Arizona Gov. Janice K. Brewer on April 23. The first was brought on behalf of individual plaintiffs by a collection of civil liberties groups that includes the American Civil Liberties Union and the National Association for the Advancement of Colored People; the Department of Justice filed a separate lawsuit on July 6 on behalf of the federal government.

In that lawsuit, the Justice Department claims that the Arizona law is a constitutional violation because "[a]lthough states may exercise their police power in a manner that has an incidental or direct effect on aliens, a state may not establish its own immigration policy or enforce state laws in a manner that interferes with the federal immigration laws."

Though the attorneys representing the state of Arizona and Brewer have not yet responded to the federal government's constitutional challenge, they asked the court to dismiss an earlier suit by arguing the immigration law reinforced existing federal statute without conflict. "Arizona's law is designed to complement, not supplant, enforcement of federal immigration laws," Brewer wrote in a published statement.

Though the bar association's briefs concentrate on the constitutional issues raised by the law, they also contend that the measure could be burdensome for both legal citizens and local law enforcement, who will be required to detain an individual if a "reasonable suspicion exists that the person is an alien who is unlawfully present in the United States," according to the statute's language.

Though citizens are not required by law to carry identification, they will be held until their immigration status can be verified, though "federal databases are poorly integrated and often incomplete or inaccurate," the ABA brief argues.

While the bar association's membership, which includes nearly 400,000 attorneys, judges and other legal professionals, is not uniformly opposed to the intent of the Arizona statute, Lamm said that after visits to bar associations in the state, including those in Maricopa, Scottsdale and Phoenix, a consensus emerged that the courts were the best venue to handle opposition to the law's implementation.

"Most of them were supportive of an in-court challenge ... they felt it was an appropriate issue for the courts," Lamm said.

A hearing on the federal government's lawsuit is scheduled for this week.

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