Capitol Media Services - Judgment Day May be Here for State Immigration Law

By Howard Fischer

PHOENIX A federal judge is holding hearings on a parade of legal challenges to Arizonas immigration enforcement law. But resolving the seven cases filed so far could keep the court busy for years.

Two of the cases go before U.S. District Judge Susan Bolton today. Lawyers in separate cases filed by the federal government and by the American Civil Liberties Union and other advocacy groups are seeking an order to keep the law from taking effect. Attorneys for Gov. Jan Brewer want Bolton to dismiss the lawsuit filed by the advocacy groups.

Meanwhile, in legal papers filed Wednesday in federal court, 76 members of the House and five senators argue
that the U.S. Department of Justice fundamentally misapprehends the nature of its authority to enforce immigration law.

Separately, a group known as the Arizona Latino Republicans Association asked for permission to actively intervene in the lawsuit to help Brewer defend Senate Bill 1070.

Attorneys say the organization has an interest in the statute being allowed to take effect. They said while the organizations 230 members want to be treated equally with other U.S. citizens, they do not believe in pwroviding a safe haven to illegal immigrants.

The brief filed by the federal lawmakers says Congress has exclusive power over immigration and that executive branch agencies can act only within those regulations. More to the point, the lawmakers say that federal agencies, absent explicit congressional authority, cannot choose to selectively enforce the laws.

That is a crucial point in the lawsuit to be heard today in U.S. District Court.

In its challenge to the Arizona law, the government admits that the Department of Homeland Security, which administers immigration laws and enforces border security, and the Department of Justice, which prosecutes offenders, exercise discretion.

For example, the lawsuit says, the agencies decide whether to bring criminal charges against someone who has violated immigration laws, whether to let an illegal immigrant remain without being incarcerated, and whether to grant humanitarian or some other form of relief.

Decisions to forego removal or criminal penalties result not only from resource constraints, but also from affirmative policy considerations including humanitarian and foreign policy interests established by Congress and balanced by the executive branch, the lawsuit says. The Department of Justice says that Arizonas law, which includes requirements for police to check the immigration status of those they reasonably suspect are not in this country legally, conflicts and interferes with those decisions.

The members of Congress, in their brief, disagree.

The executives powers to enforce federal immigration law does not confer the power to preempt state immigration enforcement by choosing, for foreign policy or other reasons, to selectively enforce the laws, they said.

That brief also says there is evidence Congress wants local police involved in enforcing federal immigration laws. That includes a statute that specifically bars cities enacting policies that bar police officers from sending information about illegal immigrants to federal authorities.

The federal lawmakers acknowledged that Congress passed a special law in 1996 allowing state and local police to receive special training, known as 287(g), to enforce federal immigration laws.

But Congress reaffirmed that each states inherent authority to enforce federal immigration laws was not restricted and that states could continue to assist in immigration enforcement, the members of Congress said.

The legal brief was signed by Trent Franks and John Shadegg, two of the 10 members of the states congressional delegation.

It was filed for the members of Congress by two legal organizations: the Immigration Reform Law Institute, which says it works to fight the damages caused by illegal immigrants, and the American Center for Law and Justice, which bills itself as a public interest law firm working to protect the constitutional rights of religious groups.