More on US Lawsuit to Squash AZ Law (Less Wishy-Washy)

More on US Lawsuit to Squash AZ Law (Less Wishy-Washy)

Julian’s link to the WSJ blog post forces me to aim for something a little more coherent (apologies, I didn’t know they were doing the interview format – thought they were on the usual fishing expedition for a soundbite or two).  The bottom line: I think there’s a pretty good chance the S.B. 1070 will be enjoined before it goes into force.

Here is DOJ’s press release and supporting documents, including the complaint and brief, both of which are nicely crafted and which persuade me that in one crucial respect the AZ law is too clever by half.

The state law closely tracks federal law (the drafters were advised by UMKC lawprof Kris Kobach, and it shows).  It doesn’t criminalize illegal presence per se, but rather a failure to possess alien registration documents (which undocumented aliens will never have).  Under federal law, presence in the US in violation of immigration law is itself not a criminal offense; failure to carry registration documents is.  But the latter is almost never enforced.  The AZ law is thus technically consistent with federal law, but only technically.  In the filings, DOJ notes that there will be many folks (mostly coming under the umbrella of humanitarian cases — think undocumented Haitians after the earthquake) whom the federal government would let be but might still end up in the clink in Maricopa County.

That said, the argument that S.B. unconstitutionally interferes with foreign relations strikes me as a stretch, for all the reasons that Crosby and Garamendi are weak decisions and the “one voice” mantra (see the brief at 24) is obsolete.  Where the brief cites the 1941 decision in Hines v. Davidowitz to the effect that “Experience has shown that international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another’s subjects inflicted, or permitted, by a government,” you can see how we’re in another world.  S.B. 1070 may be an agenda item in US-Mexico relations, but it’s unlikely to open up a third front.  If it’s such a big problem, the political branches are free expressly to preempt the state measure.

Nor is Mexico powerless to act.  We’ve got a travel advisory from the government, and the private sector below the border doesn’t have to be told that its business would better be done with Texas and California.  Those are likely to start taking a toll among Arizona voters, certainly those who lose their jobs.  Meanwhile, the Mexican government just filed an amicus brief in a parallel challenge to S.B. 1070, oddly complaining that S.B. 1070 “directly interfer[es] with the U.S. Department of State’s ability to conduct foreign affairs and policy” and “inappropriately burden[s] the uniform and predictable sovereign-to-sovereign relations.”  Hey, it’s a complicated world out there.  Mexico should be able to handle it without an assist from the federal courts, though it may get one here.

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Bryan J.

Professor Spiro,

Have you read the “preliminary report”. This following segment is excellent:

“In a prolonged discussion among a group of law professors who teach immigration law
after SB 1070 was passed, no scholar was able to identify a specific government form21 or other
mechanism for registration under § 1306(a). Accordingly, either there is no way to register and
the program is defunct, or the program is so obscure that even specialists do not know how it
works. Under those circumstances, almost all potential defendants will have a valid claim that
they did not know of the duty to register, and thus did not “willfully” fail to do so.”

Cannot even prosecute it, it would appear.


Federal preemption would seem more appropriate than some commentators suggest.  Using the Zschernig test, is there not “more than ‘some incidental or indirect effect in foreign countries,’ and … [a] great potential for disruption or embarrassment”/  Is there not real “state involvement” in immigration matters, whether or not the Arizona law does so on its face?  And what of Hines: “international conroversies … may arise from real or imagined wrongs to another’s subjects”?  If the federal government has chosen not to enforce certain laws, would state enforcement of similar law “adversely affect the power of the central government to deal with those problems” in the way that it prefers? 


[…] complaint and supporting documents here. If you don’t have time for those documents, this is a nice summary of the major […]


The problems with SB 1070 are highlighted most accurately by the declaration by Michael Aytes, Senior Advisor to the Director of USCIS. Mr. Aytes, as he explains in his declaration, started with the Legacy INS back in 1977 and, having worked his way up through the agency, served for a time as among other positions Acting Deputy Director when he was USCIS’s highest level official. He is, to say the least, sufficiently experienced to attest to the facts and law in his declaration. SB 1070 will lead to more than just the humanitarian cases in the clink. It will result in quite a lot of people who are otherwise law-abiding, such as people who are waiting in line to become Lawful Permanent Residents in the United States after having been living and working in this country lawfully. Under the Immigration & Nationality Act, an alien (that is the legal term) is eligible for Adjustment of Status on various different grounds, but for my example I will take the Software Engineer sponsored by his employer while living and working in Phoenix, Arizona. This Software Engineer entered the United States in H1B status and is sponsored by his employer who has completed both… Read more »


“In the filings, DOJ notes that there will be many folks (mostly coming under the umbrella of humanitarian cases — think undocumented Haitians after the earthquake) whom the federal government would let be but might still end up in the clink in Maricopa County.”
DOJ is lying about this. Persons who are allowed to enter are documented, even refugees from Haiti. They are given parole status and an CBP Form I-94 Arrival/Depature Record. 
What the DOJ is saying is that it is allowing illegal aliens to remain, in violation of Obama’s Oath of Office and non-feasance by ICE.


Actually, under the law, any individual who is paroled into the United States by an officer of the United States by INA Section 212(d) is first, not ‘illegally’ in the U.S. because the legal authority to grant parole is a statutory creature of Congress and is second, technically not actually ‘in’ the United States. If someone’s grant of parole has expired they are subject to removal. The U.S. Government has authority statutory authority to grant parole, extend parole, and revoke parole.

I would also like to point out that it is interesting how all the people talking abut “illegal” aliens seem to have missed the fact tht “illegal” is not actually a legal term. And what I would like to know is how many people decrying the U.S. and State governments’ failure to enforce the laws have broken any laws themselves? Hmmm? 

Bryan J.

Federale: you are simply mistaken. Many individuals who obtain asylum are “here” without authorization at the time they apply.


The problem with field preemption in this case is that there was extensive training supported by federal agencies for local and state law enforcement to deal with identifying, detaining and transporting illegal immigrants.

Also, the state law does closely mirror the federal law meaning that it in special cases such as the one AdamR brings up that Arizona officials would allow the person to remain in the states while their immigration status is being upgraded. After detainment of anyone without papers, a search is completed to find the status of the individual in the immigration system if at all. If it were noted that the person is in the process of being upgraded the officials would most likely mark this in the system for future law enforcement to know and the person would be released. Arizona would be foolish to go against federal law because then there would clearly be a case for preemption.


[…] Peter Spiro discusses US v. Arizona.  Twice. […]


[…] elaborates further in his post on Opinio Juris, below the […]

Bryan J.


there are likely many individuals outside of this narrow class who are not in the system as anything more than a visa overstay or a entry w/o inspection. Asylees come to mind, again, or people that are eligible for withholding of removal. Their status’ are unverfiable barring a full removal hearing, in most cases. Thus, there is a good chance they end up in the clinker before getting a chance to determine whether they are legally permitted to stay here.


[…] Can Obama Administration Win Arizona Lawsuit? Published July 11, 2010 By Josh Branson , Courts/Law , Immigration , Politics Leave a Comment Tags: Courts/Law, Immigration, Politics Last week, the federal government filed its lawsuit against Arizona over the state’s new immigration law. You can find the complaint and other supporting information at SCOTUSblog. The suit is based on preemption claims, which Temple law professor Peter Spiro thinks might make a decent case. […]