The U.S. Department of Justice finally filed its lawsuit today against Arizona's anti-immigrant law SB 1070, three weeks before the law is set to go into effect.
The lawsuit, which was filed in a U.S. District Court in Phoenix, argues that it's against the Constitution for a state to make its own immigration policy. It cites the legal doctrine of "preemption," which says that federal law trumps state statues.
This is the same argument made in a lawsuit filed in May by the ACLU and other advocacy groups, said Alessandra Soler Meetze, executive director of the ACLU of Arizona.
Racial profiling is mentioned only once in the Justice Department's lawsuit and not as an argument for stopping SB 1070. It's also not the lead argument in the lawsuit brought by advocacy groups because of a technicality. Since SB 1070 hasn't gone into effect yet, the racial profiling hasn't actually happened under this law, Meetze explained.
The advocates' suit by is scheduled for a hearing July 22.
The Justice Department lawsuit acknowledges that the federal government already works with states to enforce federal immigration law. This means that Obama's administration is partly arguing the following: You don't need a state law like SB 1070---we already have policies allowing you to enforce federal immigration law.
"What we're seeing from the administration is a contradiction," said Sarahi Uribe, an organizer with the National Day Laborer Oranizing Network, which is part of the lawsuit with the ACLU. "On one hand, the president is saying that federal immigration is the exclusive work of the federal government. On the other hand, he is promoting policies that outsource that very responsibility through police with ICE programs like 287g and Secure Communities."
Those programs increase collaboration between local cops and immigration officials. They have created a climate of fear in Arizona, which was one of the first states to get a 287g agreement with the feds, Meetze said. The policies have also led to American citizens being detained and to abuses of people in prison, most notably in Marciopa County, Ariz.---allegations that the Justice Department is now being investigating. Last October, the federal government severed its agreement with the county's sheriff, Joe Arpaio.
But some advocates contend that programs like 287g and laws like SB 1070 are a matter of bad immigration policy versus really bad immigration policy.
Programs like 287g are "under the explicit direction of the federal government. That's very different from what SB 1070 purports, which is basically a go-it-alone approach," said Lucas Guttentag, director of ACLU Immigrants' Rights Project and a lead counsel in a lawsuit challenging SB1070 filed by the advocacy groups. "As much as we're concerned about 287g, SB 1070 is much worse."
Try telling that though to the people who have fallen victim to officers working for Arpaio, who enforced immigration law in jails and on the streets in Arizona for several years with the feds' approval.
A recent analysis by the Arizona Republic showed that Arpaio's infamous sweeps of Latino neighborhoods are producing results similar to those of ICE at the national level: that is, they're not catching big-time criminals as they purport to do.
Instead, they're arresting people for minor violations and mostly just for not having citizenship papers. Arpaio's deputies arrested 932 people in an operation dating back to March of 2008. Of those, 709 were suspected of being in the country without authorization.
It's hard to imagine having an SB1070 and its approval of racial profiling without first having had Arpaio's 287g agreement with the feds.
What can we expect now from the pro-SB 1070 crowd?
One of the legislation's authors, Kris Kobach, claimed that states are allowed to enact laws to discourage illegal immigration per a 1976 Supreme Court decision. David Leopold, the National President of American Immigration Lawyers Association, looked through the legalese of a separate lawsuit to find out the reasoning.
To sum it up, Kobach will probably argue that the Supreme Court decided that states have authority over the employment of undocumented immigrants and so that puts anything that immigrants do under state law. But Leopold says that is plain wrong.
"If a noncitizen commits murder in Colorado, they're charged with murder. That doesn't make murder an immigration statute," he said.
Kobach has also argued that SB1070 will stand despite the lawsuits because the U.S. Court of Appeals for the Ninth Circuit upheld a 2007 Arizona law making it illegal for employers to hire undocumented workers.
The court actually dismissed the case because there weren't any plaintiffs at the time. "What they said was we will look at this statue when you bring us a plaintiff," Leopold explained.
At the very least, the Justice Department's lawsuit will hopefully be an "unmistakable canon shot" to other states that want to copycat SB 1070, Guttentag said. And of those, there are many, as we've reported before.