Patterico's Pontifications


U.S. vs Arizona (Updated)

Filed under: Immigration,Law,Obama — DRJ @ 2:26 pm

[Guest post by DRJ]

Today the Obama Administration sued the State of Arizona, challenging the constitutionality of a recent law that targets illegal immigrants and arguing Arizona doesn’t have the right to pre-empt the federal government’s authority over immigration:

“The federal government’s legal case turns on the question of pre-emption — the notion that only Washington has the authority to set immigration policy. The Justice Department’s complaint says that Arizona’s statute, which Republican Gov. Jan Brewer signed in April, “is preempted by federal law and therefore violates the Supremacy Clause of the United States Constitution.”

Here are links to the Government’s Complaint and Brief. The Complaint sets forth three counts:

  • Violation of the Supremacy Clause;
  • Federal pre-emption; and
  • Violation of the Commerce Clause.
  • The Obama Administration requests a declaratory judgment that the Arizona law is null and a preliminary and permanent injunction against enforcement of the law. It also seeks costs against the State of Arizona.

    To obtain a preliminary injunction, the federal government must meet each part of a four prong test: (1) a substantial likelihood of success on the merits; (2) a substantial threat that failure to grant the injunction will result in irreparable injury; (3) that the threatened injury outweighs any damage that the injunction may cause the opposing party; and (4) that the injunction will not disserve the public interest. Just as Judge Feldman did in blocking Obama’s moratorium on offshore drilling, the Court in this Arizona case will balance the injury on the parties and consider the impact the injunction will have on “the public interest.”

    Professor Jacobson at Legal Insurrection says the case has been assigned to U.S. District Judge Neil V. Wake. Because the Obama Administration is seeking a preliminary injunction, Judge Wake will give us an early view of his stand on this case when he rules on whether there is a “substantial likelihood” the Obama Administration will prevail on the merits.

    — DRJ

    UPDATE: Arizona Governor Jan Brewer has sent out a request for donations to help Arizona defend its law.

    59 Responses to “U.S. vs Arizona (Updated)”

    1. Reposted from the previous thread….

      Well, I read the first two pages of that filing, and almost up-chucked on by keyboard it is so filled with political swill…

      “…The nation’s immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests…
      In administering these laws, the federal agencies balance the complex – and often competing – objectives that animate federal immigration law and policy…”

      Funny, I have yet to see Congress write a law saying it shouldn’t be enforced, which is what these bozo’s are doing.

      If AZ has some smart lawyers, and it is my understanding that Gov.Brewer has retained outside counsel on this matter so they’re probably in the top tier of legal talent in AZ, it should be fun to read their response to this swill.

      AD - RtR/OS! (1087df)

    2. Can the feds truly argue they’ve pre-empted the states in this area if they haven’t done any enforcement in recent years?

      rochf (ae9c58)

    3. It’s my understanding the AZ law merely turns folks over to the Federal Government. The Feds then can exercise what they claim is their right to not enforce US laws.

      At least the illegal(s) will be off the street for a few days so they won’t be DUI or worse.

      cedarhill (b9ee05)

    4. Their intent is to enforce the law, it’s just politically inconvenient at the moment; and, as we all know, intent is everything.

      AD - RtR/OS! (1087df)

    5. Racists. That is all.

      JD (fbeb58)

    6. If they had any cohones they would have gone directly to the USSC with this suit and had it settled once and for all. Now this will go the appellate route until it reaches the USSC. I’m glad they went this route as it keeps it an election issue this Fall and maybe for the next two years. This is a loser for the Administration no matter the outcome afaic. People are in favor of the AZ law and for good reason. This puts the Admin on the wrong side of the issue which is a good thing.

      laddy (64c6cc)

    7. I think in defense the state of Arizona should seek costs against President Obama and AG Holder, personally, for they are not acting as agents of their offices or the government, for if they were, they would already be enforcing the federal law making the state law unnecessary. [I’ll accept a 0.1% donation in gratitude for the concept, not as payment for legal advice.]

      MD in Philly (3d3f72)

    8. I only glanced at the beginning, but I’d like to know how the AZ law could interfere with things like the asylum process and the other things they mention considering that AZ can’t actually deport anyone; they’re just a stopping point to the DHS and once the DHS has someone they can decide what to do.

      P.S. In case anyone is willing to do a little work, here are five highly effective ways to do something about the suit.

      24AheadDotCom (4627c9)

    9. 24ahead is predictable in its arrogance. You should all pay attention to him, he knows things.

      JD (fbeb58)

    10. When cities declare themselves “Sanctuary Cities” is that not a case of pre-empting federal law by openly and actively harboring fugitive illegal immigrants?

      elissa (75bb70)

    11. elissa – That is a wise, yet racist observation on your part. Repent. Denounced and condemned.

      JD (fbeb58)

    12. well, this suit is certainly unprecedented, even if it isn’t unexpected.

      redc1c4 (fb8750)

    13. The feds have not “occupied the field” in terms of enforcement, and the Arizona law doesn’t supplant any part of the federal law, so I don’t see how the DOJ wins this.

      And, it was pretty ballsy of the DOJ to seek costs from Arizona! How much does the fed gov’t owe Arizona for jailing, feeding, and educating the illegal aliens that the feds have failed to deal with? Maybe if Arizona loses, it can just get an offset.

      LASue (ed9852)

    14. I’m sure that Sheriff Joe has a note on his desk that is updated weekly as to what Maricopa Co’s costs are in dealing with illegals, and it is something that the Feds have refused to pay in the past, but could they ignore a Fed Court Judgement of Damages?

      It’s Popcorn Time again!

      AD - RtR/OS! (1087df)

    15. Meanwhile, the Pinal County Sheriff has received death threats from the Mexican Mafia.

      Brother Bradley J. Fikes, C.O.R. (a2ee35)

    16. At least Judge Wake isn’t a left-wing liberal judge appointment by Obama or Clinton, so we know it will be a fair trial at least that is based on rule of law. I was worried this thing might get political as the tyrants that rule us move farther into the rule of men.

      A Conservative Teacher (523bcf)

    17. The threat against the Sheriff reportedly came from a credible source outside Arizona — maybe law enforcement from other border states? — and it could be be related to the recent threats against El Paso law enforcement.

      DRJ (d43dcd)

    18. So this is how you file a cocked up political lawsuit.

      I note it does not reference the expected racial profiling. An oversight I am sure.

      If it succeeds, does that mean the States can not enforce federal laws? Like Bank robbery? Drug laws? That should prove interesting.

      bill-tb (541ea9)

    19. I note it does not reference the expected racial profiling


      This was the most common scream from the Administration, and it has cost Arizonans quite a bit. If you’re going to play the race card, you need to be able to back it up. Such hostility they must feel to smear Arizona while knowing they can’t defend those claims in a courtroom.

      Dustin (b54cdc)

    20. I updated the post.

      DRJ (d43dcd)

    21. Arizona law does not differ from federal law and Az officials would hand illegals over to Feds. Is this any different than enforcing other federal laws at the local level? Lets take counterfeiting for example. Wouldn’t local police be obligated to arrest counterfeiters?

      Dennis D (e0b996)

    22. At any given time and place the majority of illegal aliens could be from many various nations. I bet NYC has a large Asian illegal population and perhaps many Russians too. In Arizona it just so happens the majority are Mexican. Its not racism to arrest these people.

      Dennis D (e0b996)

    23. The federal government vs. the People of Arizona.

      Big Zero not only destroys private sector jobs, our currency, decimates our space program and military, expands the power of the federal government by extending its reach into every facet of our society, he now engages in a war with the citizens he was elected to serve and protect.

      Don’t let yourself be distracted by “oooohhh… will the fire Michael Steele or won’t they?”, the focus must be on November 2010 and November 2012. Throw these bums out.

      GeneralMalaise (9cf017)

    24. the=they, heh

      GeneralMalaise (9cf017)

    25. Well, i will repeat the analysis i gave elsewhere.

      1) this entire suit rests on the idea that the administration intends for the clusterfrak that is our current immigration system to be as it is. Digest that for a moment. Its both facially implausible and incredibly damaging.

      2) they are asserting that preemption means not only that the state law must match federal law, but the enforcement policy of the state government must match the enforcement policy of the Federal Government. That would more or less outlaw the use of the states to enforce federal law, which is not our constitutional system.

      3) Finally, someone in the Obama administration has read the law. we can only hope for a similar result in the challenge to Obambicare.

      Aaron Worthing (A.W.) (f97997)

    26. Wouldn’t local police be obligated to arrest counterfeiters?

      Only if they’re not members of a perceived, discriminated against, minority racial/ethnic group; for as everyone knows, group rights trump individual rights in Obamunism.

      AD - RtR/OS! (1087df)

    27. “…but the enforcement policy of the state government must match the enforcement policy of the Federal Government…”

      Which, if the Feds decide not to enforce some law, means that no-one else is allowed to enforce that law…
      Do as I do, not as I say.

      AD - RtR/OS! (1087df)

    28. Well the governor has retained Snell & Wilmer, one of the top drawer firms in Phoenix. If they are not the best law firm in Arizona, they’re certainly tied for first place with any other “best” firm in AZ. But in the real world, it’s not the firm (which is important in that it provides backup resources) but the individual lawyer handling the case. I hope Ms. Brewer got the pick of the litigating litter from Snell & Wilmer.

      Mike Myers (3c9845)

    29. Whoever the nominee is in 2012, I see Jan Brewer as a serious possibility for #2. She has made the most of her opportunity since Big Sister left for DHS. She is now matched up with Obama and I see no way he can win on this case. It will marginally affect the 2010 election but it may be a large issue in 2012 when the depression has really taken hold.

      Mike K (82f374)

    30. I think that if the feds were wise, they’d leave this issue alone. If they keep on the way they’re going, there’ll be a hurricane of reaction and a bunch of laws passed that make the harshest immigration laws we’ve ever had look like nothing much.

      Technomad (e2c0f2)

    31. Didn’t the feds get a California law tossed out on preemption grounds a few years back?

      This may not be a slam dunk. It preempts the federal policy of selective enforcement and interferes with foreign policy, which only the State Department can conduct, by pissing off Mexico.

      daleyrocks (1d0d98)

    32. CA’s Prop-187 was found to be Un-Constitutional by a District Court judge, and the Governor (Gray Davis) refused to appeal the matter…which was a factor in his recall.

      AD - RtR/OS! (1087df)

    33. Mike K,

      That I think Brewer would be chewed up and spat out in a presidential debate is quite an indictment of our political world.

      She’s a smart leader who shows resolve and a backbone, but she talks like a normal human being. She kinda resembles the image I had of Palin when I hadn’t really been exposed to her. Just a normal person leading a state by actually caring about the best interests of the people.

      I can’t see her chanting ‘fired up, ready to go’ 100 times like the Obama rally I attended in 2008 (I’m a curious person).

      I am not an expert in administrative law by any means. I remember the kids in that class had much larger heads than I do, where they put their larger brains.

      Would it be possible to sue the federal government for not enforcing their immigration laws? As things stand, absolutely no ‘deal’ reached on amnesty would make sense for the right. The left would just enforce their gains and ignore their concessions. This lawlessness has broken something important.

      Dustin (b54cdc)

    34. If “JD” is a supporter of the suit, it’s telling that it doesn’t want you to know how to do something about the suit.

      If “JD” is an opponent of the suit, it’s yet another example of r/w blogger/teaparty fail: trying to dissuade people from learning how to do something about the suit.

      As for the “arrogance” part, it’s actually easy since – in a country of 300 million people – I seem to be the only person actually suggesting ways to do something other than just standing around and waiting for things to happen.

      24AheadDotCom (4627c9)

    35. 24ahead, have you surveyed each and every one of those 300,000,000 people?

      Thought as much.

      John Hitchcock (9e8ad9)

    36. Lone Whacko – Why are you spending time telling other people what to do about the suit instead of just doing it yourself? Don’t you have any friends?

      daleyrocks (1d0d98)

    37. I assume this means that all state drug laws are now null and void, as the Feds have laws that preempt them?

      Kevin (f183e8)

    38. All those cities in CA that have been pinning their budget hopes on taxing MaryJane Clinics are going to be in the deep Kim-Chee.

      AD - RtR/OS! (1087df)

    39. Found two more interesting links. First a discussion with a law prof on the subject:

      And from him, a case which frankly looks really bad from the government’s perspective:

      That would be a unanimous court upholding a state anti-immigrant law, with an opinion written by Brennan.

      Folks, if you are a liberal, and Brennan doesn’t even have your back, you are screwed. i can absolutely guarantee that at least part of this law will be upheld, and i am about 80% sure that most of it will be.

      Aaron Worthing (A.W.) (e7d72e)

    40. I agree with A.W.. If for no other reason, claiming our federal immigration laws are coherent is something any judge would laugh at.

      nk (db4a41)

    41. nk, not to nitpick, but the law is coherent enough. but they have to be enforced, which is the real problem.

      Which is what i think you meant anyway, but i wanted to clarify in any case.

      Aaron Worthing (A.W.) (e7d72e)

    42. After I saw those stupid signs, I did a hundred eighty degree on Arizona’s law.

      nk (db4a41)

    43. nk

      you mean the ones saying that US citizens shouldn’t go to certain places? yeah, i can’t believe obama let those signs go up and then continued to pretend the situation was under control.

      Aaron Worthing (A.W.) (e7d72e)

    44. from IMAO, i think he sums it up well:

      “Does the federal government ignoring a law supersede a state enforcing it?”

      lol also:

      “So Obama won’t enforce the borders, but he will spend our tax money on making sure states don’t either.”

      Aaron Worthing (A.W.) (e7d72e)

    45. Comment by 24AheadDotCom — 7/6/2010 @ 8:01 pm

      Careful now. You realize, of course, that your average Patterico commenter (especially that DRJ) shows no obligation toward doing anything above and beyond merely commenting on Patterico.

      And if you’re directing your Request for Activism toward JD, he’ll gladly tell you where to stuff said request.

      Brad S (9f6740)

    46. You win, Brad S. I quit.

      DRJ (d43dcd)

    47. Now you’re just giving up too easily, DRJ:) I’m just noticing that 24aheadDotCom, aka LoneWacko, has the same sort of expectations I had of Patterico commenters, and I’m trying to disabuse him of having such expectations.

      BTW, 24aheadDotCom, are you still yammering on about the “Kochtopus,” and how it won’t give to your cause? If you are, how does said yammering connect to both your suggestions and the lack of obligations held by the average Patterico commenter?

      Brad S (9f6740)

    48. 24’s arrogance really does a ton of damage to his ability to give orders to us troops.

      But his plan is actually well conceived. I think because it’s so derivative of the other activism plans I’ve seen over the years. If activism is for you what it appears to be for 24, a way to prove you are the best conservative, you should just get a life. But his plan is pretty good if you want to make a difference on this issue.

      In fact, that’s what’s so clever about Brewer’s work so far. She has forced the administration to admit things about its policy, forced politicians and voters to think the issue over and take a stand or try to weasel away. That’s smart politics.

      But you don’t see her playing king of the conservative mountain, just as you don’t see people here often brag like little weirdos.

      Dustin (b54cdc)

    49. Comment by Dustin — 7/7/2010 @ 9:26 am

      Well, it helps that Jan Brewer made the whole argument over SB 1070 one of Arizona v Washington DC. Over the last 30 years, that sort of argument has been a proven winner. Makes one wonder why Pete Wilson never made that argument when he ran heavily in favor of Prop 187 in ’94.

      Apparently, it’s something 24aheadDotCom has significant trouble understanding, as he continues to push methods that are guaranteed to generate no drama, and a whole lot of pushback due to his arrogance.

      Brad S (9f6740)

    50. Brad S:

      Careful now. You realize, of course, that your average Patterico commenter (especially that DRJ) shows no obligation toward doing anything above and beyond merely commenting on Patterico.

      This doesn’t sound like kidding to me. Is it?

      DRJ (d43dcd)

    51. Where’s the Beef ?

      Where is the charge of racial profiling or actions that could lead to racial profiling ?

      Neo (7830e6)

    52. Brad S: Prop-187 won – as did Wilson – in 1984 with Wilson’s support. It lost in the courts after the next Gov – Gray Davis – pulled the plug on an appeal to satisfy his Hispanic/Leftist base.

      AD - RtR/OS! (568b48)

    53. Read the US v. Arizona filing. The attorneys that drafted this are about the same level as first year law students, if that!

      OB (725d1d)

    54. AD – 1994, you mean.

      aphrael (e0cdc9)

    55. Also, I don’t remember the refusal to defend Prop. 187 being a factor in the Davis recall; my impression was that it was mostly about (a) the VLF, (b) growth in government spending, (c) Davis’ inability to work with the legislature, and (d) enron/electricity deregulation.

      [Disclaimer: I voted for the recall.]

      aphrael (e0cdc9)

    56. After seeing an empty suit like Gray Davis beat Dan Lungren for the office in ’98, I knew that nothing the voters of California could do in the future could possibly ever surprise me.

      GeneralMalaise (9cf017)

    57. aphrael…thanks for the correction, I never could hit those number keys in the top row without moving my hands, and it didn’t work this time around.
      187…there was an undercurrent down here in SoCal because that is the home of the group that was the driving force behind the Prop (mostly OC and Inland Empire). The lack of appeal left a lot of heartburn.

      AD - RtR/OS! (568b48)

    58. Ahhh. ok. not being in southern california, I didn’t get that undercurrent. 🙂

      I imagine, though, that the people who were upset about the lack of appeal had almost all voted for Mr. Lungren instead; ie., that issue isn’t what swayed people who voted for Gov. Davis to vote to recall him (and without *some* number of those people, the recall would have failed).

      aphrael (e0cdc9)

    59. There will be a fund-raiser next week (Wednesday) in Philadelphia at “Geno’s Steaks” in South Philly hosted by the owner Joey Vento and one of the local talk radio hosts.

      Mr. Vento put up a sign a few years ago asking people to order in English, reflective of his opinion that immigrants to the US should learn English, as his Italian parents did. As you can imagine, it wasn’t long before some commission in Philadelphia was after him. He won the case in court allowing him to keep up the sign, but apparently he gets inspected by the health department about as often as any other 10 restaurants combined. He always claimed he never refused to sell food to anyone who didn’t know English. Since the outcome of the court case he frequently airs short opinions about various political issues on at least two of the talk radio stations in town.

      MD in Philly (3d3f72)

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