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Obama v. Arizona

The administration will have a tough time making its case against Arizona's immigration law.

2:00 AM, Jul 9, 2010 • By ADAM J. WHITE
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While the Obama administration phrased its complaint in broad terms, it appears to be framing this case primarily as one of "conflict" or "field" preemption. Namely, in administering the federal immigration laws, "the federal agencies balance the complex – and often competing – objectives that animate federal immigration law and policy," and that the "nation's immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests."  In fact, the Obama administration goes so far as to assert that S.B. 1070 prevents it from getting tough on truly nasty illegal immigrants: "S.B. 1070 disrupts federal enforcement priorities and resources that focus on aliens who pose a threat to national security or public safety ... undermin[ing] the federal government's careful balance of immigration enforcement policies and objectives."

But that line of argument wholly misses the point.  When courts decide whether federal law preempts state law, the question is not whether the state law conflicts with the president's selective enforcement of federal statutes.  The question is whether the state law "stands as an obstacle to the accomplishment ... of the full purposes and objectives of Congress," as embodied by the federal statutes.  S.B. 1070 satisfies that test – it does nothing more than allow state officials to enforce Congress's purposes and objectives as expressed in current federal statutes.

And while the Obama administration's complaint cites several federal statutes that stop short of levying upon illegal immigrants the sorts of criminal sanctions imposed by S.B. 1070 (e.g., humanitarian exceptions of asylum), it identifies no part of S.B. 1070 that specifically requires state officials or judges from incorporating those federal limits into their own actions, to the necessary extent. Indeed, by suggesting that S.B. 1070's sanctions against persons "unlawfully present" in the United States do not take into account federal asylum determinations, the Obama administration interprets S.B. 1070 in the worst possible light.  But a cardinal rule of statutory interpretation is that courts should, whenever possible, interpret statutes in a way that minimizes or avoids such constitutional conflicts.

As it happens, the Supreme Court may weigh in on these types of questions long before the lower federal courts resolve the Obama administration's case.  In the upcoming term, the Court will hear Chamber of Commerce v. Candelaria, which presents a similar constitutional challenge to another Arizona immigration-related statute – one that was signed into law, ironically enough, by then-Governor Janet Napolitano.  In that case, the traditionally liberal Ninth Circuit ruled in Arizona's favor, holding that federal law does not preempt Arizona's law punishing employers that hire illegal aliens.

No one gets rich betting big against the U.S Department of Justice.  Its lawyers are among this nation's very finest.  But the Obama administration's decision to commence this controversial lawsuit will require them to put their formidable talents to the test.

Adam J. White is a lawyer in Washington, D.C.

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