By Kimberly Ninh, Legal researcher/writer at Zhang & Associates, P. C. 

Last week at American University, President Barack Obama delivered a much anticipated speech addressing immigration reform. Obama responded to the recent Arizona Immigration Bill set to pass later this month as one that encouraged “a patchwork of local immigration rules”. The Arizona Immigration Law, or SB1070, makes it legal for law enforcement officers in the state of Arizona to determine the nature of someone’s immigration status and will allow officials to arrest a person if there is reasonable suspicion to believe that he/she in the United States illegally.

On July 6, 2010, the Department of Justice took action by filing a lawsuit against the state of Arizona with the Federal District Court of Arizona, citing that federal law preempts state law. It has also requested from federal courts an injunction to cease law enforcement from carrying out the measure until it officially passes at the end of the month.

According to the Department of Justice’s brief, “S.B. 1070 pursues only one goal –“attrition” – and ignores the many other objectives that Congress has established for the federal immigration system. And even in pursuing attrition, S.B. 1070 disrupts federal enforcement priorities and resources that focus on aliens who pose a threat to national security or public safety. If allowed to go into effect, S.B. 1070’s mandatory enforcement scheme will conflict with and undermine the federal government’s careful balance of immigration enforcement priorities and objectives”.

Benjamin Johnson, Executive Director of the Department of Justice, has stated that "the federal government is taking an important step to reassert its authority over immigration policy in the United States . . . while a legal challenge by the Department of Justice won't resolve the public's frustration with our broken immigration system, it will seek to define and protect the federal government's constitutional authority to manage immigration".

In addition to reasons cited by the Department of Justice, SB1070 also has the potential of infringing on the rights of United States citizens and legal permanent residents, making undocumented aliens more fearful of law enforcement and discouraging them from reporting crimes or seeking help, and creating de facto immigration agents who may or may not understand all the workings of immigration.

While our firm is incredibly supportive that the United States Department of Justice has decided to take action against SB1070, we hope that this is not merely a political statement and that the government is concerned with more than reasserting its political jurisdiction. Despite the fact that this is a case of federal versus state law, it will take cooperation from both federal and state authorities to improve our immigration system. We believe that Johnson is correct in his statement that legal action taken by the Department of Justice will not solve the core of the nation’s immigration problems. Rather, the Obama Administration should make substantive changes that will offer a viable immigration solution to meet both the personal needs of immigrants as well as the legal and taxation needs of the United States.

Furthermore, we do not think this kind of lawsuit would be possible in other countries. Usually, the central government in other countries can change local regulations by exercising supreme, indisputable legal and political power over local authorities. However, the United States is different.

Our central government is based on "federalism", meaning it has “limited” powers conferred by the U.S. Constitution; State Governments have “plenary” powers . Plenary powers refer to those granted absolutely to a governing body without any limitations or review. For instance, State Governments have plenary powers in providing public healthcare, safety, issuing marriage, hunting and driver licenses, etc.

The Federal Government has limited power in implementing and enhancing constitutional rights as well as federal laws. There is a supreme clause in the Constitution that maintains that even though federal power is limited, if there are any conflicts between federal  and state laws, federal laws always pre-empt state laws as long as the federal law has jurisdiction over the matter . Moreover, some laws, like immigration, are in the exclusive domain of the Federal Government under the Constitution .

Technically speaking, the Arizona Act in question is not an immigration law as it does not concern a non-immigrant status, confer an immigration benefit, or grant a green card. The Arizona Act, although we believe it is wrong, is still constitutional and does not conflict with any immigration laws. Arizona legislature has every right to pass such a law.
  
To some extent, we think this lawsuit is a political show by the Federal Government; they may very well lose the case or withdraw it. However, by filing the lawsuit, the Federal Government hopes to send a message to other states. Hopefully, this is a signal that President Obama will vigorously push for a comprehensive immigration reform bill.

To read the full brief, please click here.  

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1. U.S. Const. art. I, § 9, U.S. Const. art. I, § 10
2. U.S. Const. art. VI cl. 2
3. U.S. Const. art. I, § 8