Here’s my column on the federal lawsuit today. An e-mail:

Rich,
I think this lawsuit is more rermarkable for what it fails to allege than for what it does allege. There is no claim of a civil rights violation to be found anywhere in the lawsuit, despite the weeks of overheated rhetoric from the White House about potential racial profiling, etc. The failure to include a civil rights component anywhere in the lawsuit is, I think, a tacit admission of just what a bunch of pure, demagogic baloney all of that talk really was. The conservatives on the Fox Panel tried to make this point last night, and Mara Liasson tried to parry it by suggesting that it would be premature to raise civil rights objections before the law actually went into effect and someone’s rights were actually violated. I like Ms. Liasson (even though I don’t usually agree with her), and consider her commentary to be sincere and well-intended, but … a facial challenge to the constitutionality of a statute can be made at any time – in fact, one is being made by the U.S. in the preemption argument that is part of this lawsuit. Adding a facial challenge on Fourth or Fourteenth Amendment grounds is unquestionably possible. The government chose not to make such a challenge, and I presume they made that decision for one reason only: they were afraid they would be sanctioned for making a bad–faith legal argument. The only type of challenge that cannot be made till the law goes into effect is an “as applied” challenge – that the law, while constitutional on its face, is unconstitutional in the manner in which it is being applied. That is an entirely different basis for a constitutional challenge than a facial challenge. It is not limited to civil rights cases. It can be made even in the preemption context. In other words, if Ms. Liasson’s argument were correct, and no civil rights claim could be made till after the law went into effect, the same reasoning would apply to the preemption challenge, and there would be no basis for anyone to file any kind of a lawsuit at this point…