When, during an interview in Ecuador, Secretary of State Hillary Clinton let the cat out of the bag about the Obama administration’s plan to sue Arizona, she did more than foul up the Justice Department’s eventual roll-out of the plan. She also revealed who was sitting in the driver’s seat when it came to the Justice Department’s decision: “President Obama has spoken out against the law because he thinks that the federal government should be determining immigration policy. And the Justice Department, under his direction, will be bringing a lawsuit against the act.”
In other words, the same political reasoning that drove President Obama to criticize (and mischaracterize) the Arizona law is now driving the Justice Department to bring the suit. Not to mention the potential embarrassment that would result if the Justice Department had made an independent decision to the contrary. Barack Obama, constitutional scholar that his fans make him out to be, can’t say one thing and have the Justice Department say another.
The only problem with Obama’s strategy is that the federal judges will actually read the Arizona law, and they will find that there is precious little for the Justice Department to attack. The opinions of the Fourth, Fifth, Eighth, Ninth, and Tenth Circuits of the U.S. Court of Appeals (which are all of the Circuits that have addressed the issue) support the authority of Arizona to enact its law. Another obstacle for the Justice Department is the fact that the Department’s Office of Legal Counsel in 2002 authored an opinion on the topic, finding that state police officers are well within their rights to make arrests of illegal aliens.
The legal frailty of the administration’s position is bad enough. What makes it worse is the unprecedented nature of an administration suing a state, absent truly extraordinary circumstances. Normally, considerations of comity and federalism demand restraint in the consideration of any such suit. The administration’s lack of restraint is deeply troubling.
To put it in perspective, consider how restrained Bush’s Justice Department was. During 2001–2009, numerous states and cities enacted laws rewarding immigration that clearly violated the express terms of federal law. For example, ten states enacted laws giving in-state tuition rates to illegal aliens who attend their state universities, which violates 8 U.S.C. § 1623; and dozens of cities adopted sanctuary policies that prevent their police officers from reporting illegal aliens to Immigration and Customs Enforcement (ICE), in violation of 8 U.S.C. §§ 1373 and 1644. Even though the states and cities involved were violating the plain text of federal law, the Justice Department held its fire. Only when the state of Illinois declared that a federal program allowing employers to verify their employees’ work authorization electronically — E-Verify — would not be permitted in Illinois, did the Justice Department take the unusual step of filing suit. Doing otherwise would have allowed one state to opt out of what Congress had said must be a nationwide program. The Bush Justice Department won easily.
In contrast, the Obama administration’s suit against Arizona will be on thin ice from the start. There is no federal statute that the administration can point to that Arizona has violated. They will rely on activist theories of federal preemption that the ACLU has been peddling with little success for years.
But even if one were to imagine that the Obama administration had a strong legal argument, there would be yet another reason not to file the lawsuit: It is completely unnecessary. Five suits have already been filed by the ACLU and their fellow travelers. The issue is already teed up for the federal courts to decide. The administration achieves nothing by launching its own litigation. Except, of course, for rallying the Democrats’ open-borders base before the 2010 elections.
– Kris W. Kobach is a professor of law at the University of Missouri (Kansas City) School of Law and one of the principal authors of Arizona SB 1070. He served as Attorney General John Ashcroft’s counsel and chief adviser in Immigration Law. He is currently a candidate for the office of Kansas secretary of state.