By Jerry Markon
Washington Post Staff Writer
Friday, July 23, 2010; A01
PHOENIX -- A federal judge pushed back Thursday against a contention by the Obama Justice Department that a tough new Arizona immigration law set to take effect next week would cause "irreparable harm" and intrude into federal immigration enforcement.
"Why can't Arizona be as inhospitable as they wish to people who have entered or remained in the United States?" U.S. District Judge Susan Bolton asked in a pointed exchange with Deputy Solicitor General Edwin S. Kneedler. Her comment came during a rare federal court hearing in the Justice Department's lawsuit against Arizona and Gov. Jan Brewer (R).
Bolton, a Democratic appointee, also questioned a core part of the Justice Department's argument that she should declare the law unconstitutional: that it is "preempted" by federal law because immigration enforcement is an exclusive federal prerogative.
"How is there a preemption issue?" the judge asked. "I understand there may be other issues, but you're arguing preemption. Where is the preemption if everybody who is arrested for some crime has their immigration status checked?"
At issue in Thursday's hearing, argued in a tan-colored "special proceedings" courtroom" inside the federal courthouse, was whether Bolton would grant a preliminary injunction to stop the law from taking effect while the federal lawsuit proceeds.
As dozens of protesters marched outside, the hearing marked the first round in the Obama administration's effort to stop the state's crackdown on illegal immigration. The tension in the courtroom reflected a broader national debate over what has become a political divisive issue: whether police should have the power to question people they suspect are in the United States illegally.
"The regulation of immigration is unquestionably, exclusively, a federal power," Kneedler told a rapt courtroom. Brewer, whose fierce criticism of the federal lawsuit has helped her popularity at home, watched silently from the front row, drawing a "Good afternoon, Governor" from the judge.
Lawyers for Brewer argued with equal force that the legislation, scheduled to take effect July 29, is a legal expression of a sovereign state's right to secure its borders against a tide of illegal immigration. The federal government, the lawyers said, has failed to act.
"We keep hearing that we can't really do anything about these illegal aliens -- Arizona should just deal with it," said John J. Bouma, Arizona's lead attorney. "Well, the status quo is simply unacceptable."
The law, which Brewer signed in April, empowers police to question people they have a "reasonable suspicion" are illegal immigrants and to send them to federal authorities for possible deportation. President Obama has strongly condemned the law, and the Justice Department filed suit July 6, setting up an unusual clash between the federal government and a state over who should enforce the nation's immigration laws.
Bolton did not indicate how she might rule, saying only that she will take the matter "under advisement." But she did subject Justice Department lawyers to some pointed questions.
Kneedler responded to her query about why Arizona authorities don't have the right to be inhospitable to illegal immigrants by saying the law has given the state the power to enforce immigration law "in, frankly, an unprecedented and dramatic way."
"It is not for one of our states to be inhospitable in the way this statute does," Kneedler said, citing as his main argument the legal doctrine of "preemption."
Based on the Constitution's supremacy clause, it says federal law trumps state statutes. Because the federal government has "preeminent authority to regulate immigration matters," the government's lawsuit argues, the Arizona law must be struck down.
Bolton questioned key parts of that argument, especially relating to a section of the law that appears to require immigration-status checks if police stop someone for another law enforcement purpose and suspect the person is an illegal immigrant.
Kneedler said the conflict with federal law comes because the status checks are mandatory, which could lead to federal agencies being overwhelmed with deportation requests. Top officials at U.S. Immigration and Customs Enforcement, whose agents will handle most of the calls from Arizona authorities if the law takes effect, have said they will not necessarily respond to every call.
"There really is no flexibility," Kneedler said.
He added that the Arizona law might lead to police harassment of U.S. citizens and is threatening to harm vital cooperation along the border with Mexican authorities, who have strongly condemned the law. "These are very concrete harms, very substantial foreign policy concerns," he said.
Bouma ridiculed the foreign policy concerns.
"Foreign outrage doesn't make the law preempted," he said. He accused the Obama administration of ignoring requests from Brewer and numerous other governors for more help in securing the border.
"You can't catch them if you don't know about them," he said. "And they don't want to know about them."
Bolton is hearing six other lawsuits filed against the Arizona law. A former Arizona state court judge, she was nominated for the federal bench by Democratic President Bill Clinton, but legal observers say she is hard to pigeonhole ideologically.
Outside the gleaming glass-and-white iron courthouse, named for former Supreme Court justice Sandra Day O'Connor, an angry subtext reflected the divide over how to handle the nation's estimated 12 million illegal immigrants.
Opponents of the Arizona law clasped hands, prayed and held signs condemning it.
"The law is racist. The police are harassing us because of our brown skin," said Marta Calderon, who sat next to a painting of the Virgin Mary affixed with a sign saying "Stop SB1070," as the immigration law is known.
Nearby, Brandy Baron waved an American flag and expressed her support for the law and her "disgust" at efforts to overturn it.
"I am amazed that the Justice Department would have the nerve to sue us for trying to get laws that are already on the books enforced," she said.