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Dispute Over Controversial Arizona Immigration Law Heads to Court

July 22, 2010 at 12:00 AM EDT
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The State of Arizona faced off against the U.S. Justice Department in court Thursday over the controversial immigration law set to go into effect next week. Ray Suarez discusses the legal dispute with two law professors, one a critic of the law, and another who helped write it.
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JEFFREY BROWN: Next: the legal battle over Arizona’s immigration law.

And to Ray Suarez.

RAY SUAREZ: The first showdown between the U.S. Department of Justice and the state of Arizona over the state’s high-profile immigration law went before a federal judge in Phoenix today. Protesters gathered outside the courthouse, as Justice Department lawyers argued for an injunction to prevent the new law from taking effect next Thursday.

The law makes it a state crime to be in the country illegally and requires local law enforcement officials to check the immigration status of anyone they encounter while enforcing other laws, where reasonable suspicion exists that they are illegal immigrants.

In all, seven federal suits have been filed against Arizona Governor Jan Brewer since she signed the legislation in April.

Now, two different legal views. Kris Kobach of the University of Missouri-Kansas City School of Law helped to author the Arizona bill — and Steven Gonzales of the Phoenix School of Law.

And, Professor Gonzales, let me start with you.

On what do you base your contention that the law is unconstitutional?

STEVEN GONZALES, Phoenix School of Law: Well, good evening from Phoenix, Ray.

There’s a couple problems, I think, very serious problems, with the act. But the biggest defect, I think, is that it tends to — in fact, it boldly usurps federal power. The Constitution of the United States gives the power of naturalization and to set policy on protecting the national borders and related issues to Congress, to the federal government.

In this situation, we have a state, one state, in effect, trying to seize that power. And, if you think about it, if that is permitted to continue, then there’s a danger that all other states will try to do it. And the states are never going to agree. So, it essentially threatens the federal order and the supremacy of the — of congressional power here.

RAY SUAREZ: Professor Kobach, you are co-author of the bill. What do you make of that line of argument?

KRIS KOBACH, University of Missouri-Kansas City School of Law: Well, if I might initially point out, the law doesn’t make it a crime to be in the state illegally. The law says, if you are not carrying certain registration documents that the federal law already required you to carry, then you will be committing a state misdemeanor.

But, as far as the claim that it usurps federal authority, the courts of the United States, including the Supreme Court of the United States, have not so held. The Supreme Court has two precedents on this issue, one from 1976 one from 2005, and they both support what Arizona is doing.

The court has held that states may pass laws to discourage illegal immigration within their jurisdiction. And the U.S. courts of appeals — and I have argued many cases around the country on this specific question — have also held that state and local police may make immigration arrests without being preempted by Congress.

Indeed, Congress has passed numerous statutes to encourage state and local police to make immigration arrests. So, far from usurping federal authority, the Arizona law, because it is drafted to be perfectly concurrent with Arizona — with federal authority, it actually is not preempted, and, indeed, encouraged, by federal statute.

RAY SUAREZ: Well, Professor Kobach, you heard Professor Gonzales say that the Constitution specifically uses language to assign to itself the authority to regulate these matters. Does it?

KRIS KOBACH: Yes.

And, of course, the Constitution gives Congress what’s called plenary power to regulate immigration. However, preemption is when Congress pushes the states off the field. And preemption doesn’t occur just because Congress is given the power. Congress has to take an act that is deliberate and that is recognizable and is very distinct to say, we don’t want the states on the field.

And the courts have held, including the United States Supreme Court, that no such act has ever been passed by Congress. That’s why all of the precedents strongly support Arizona in this case.

RAY SUAREZ: Professor Gonzales, what do you make of that idea, that it’s concurrent, not in conflict with federal law?

STEVEN GONZALES: Well, all due respect to Professor Kobach, I could not possibly agree — or disagree more.

In simple terms, we have to look at it this way. The Constitution gives some powers to the federal government and some powers to the state government. Now, it is true that, on occasion, there is some gray area, but there is no gray area here.

Congress — most of the laws that I believe Professor Kobach has referred to are actually delegated authority by Congress to the states. In this situation…

KRIS KOBACH: No, that’s not correct.

STEVEN GONZALES: … the state of Arizona — in this situation, the state of Arizona has just taken upon itself to assume and take over a national policy here. So, that is certainly not concurrent. That is the seizing of power.

The fundamental problem here is that this is federal supreme power. And Congress has, in fact, acted. As the Justice Department’s complaint in this case has set forth, there’s a legion of federal legislation regulating how the federal government regulates immigration and naturalization, how individuals should be treated.

And what has happened here is that, by setting up this scheme, Arizona has said, well, we don’t quite agree.

It’s one thing if Congress gives the authority or delegates the authority to the states. It’s quite another thing if the states just say, we want to do it.

For example, one of the dangerous precedents that could happen here is that, let’s say, just for example, Hawaii, California, or Florida says, OK, Arizona, if you can set policy, we can, too. Arizona can’t say, well, every other state has to follow our policy. So, what if Florida or California just says, well, we like immigration; we want to open up the borders more; we need more workers?

Then you have got chaos. And that’s the reason why the framers of the Constitution made this a federal power.

RAY SUAREZ: Let me jump in there.

RAY SUAREZ: Professor Kobach, until recently, before the passage of this law, SB1070, the Obama administration and before that the Bush administration was using local law enforcement in various states to assist on immigration law enforcement.

Is that an example of the kind of delegated, complementary, cooperative power that Professor Gonzales was talking about? And is that different from what’s going on in the Arizona case?

KRIS KOBACH: There are two different types of power, delegated and inherent power.

But Professor Gonzales is incorrect to state that this a — that the prior examples of Supreme Court precedents involved delegated power. In fact, they didn’t. The 1976 case of the Supreme Court held that California could pass a statute out of the blue penalizing state employers within the state who are knowingly hiring illegal alien workers. That wasn’t delegated power.

Now, it is correct to say that the Bush administration did use the so-called 287(g) authority, Section 287(g) of the Immigration and Nationality Act, to effectively deputize certain jurisdictions, more than 60 of them across the country, to give their law enforcement officers federal ICE powers, with if you will.

And the Obama administration has radically scaled that back, by the way. But 287(g) authority is entirely separate from the inherent authority that every law enforcement officer across the country has to make an immigration arrest. The Fourth, Fifth, Eighth, Ninth and 10th Circuits have all held that police, state and local police officers, have inherent authority to make immigration arrests.

And then the United States Supreme Court held in 2005 that they also have the authority to make inquiries about a person’s immigration status. So, it is very well established that state and local police can assist the federal government in enforcing federal immigration laws.

And I want to correct one other thing that was said, and that is that somehow Arizona is creating its own immigration policy. Far from it. The Arizona statute reflects, is a mirror image of federal law, and simply says, we would like to help ensure that federal law is enforced, because it very expensive, $2.7 billion a year cost of illegal immigration in the state, and it has criminal consequences.

Many police officers, of course, have been killed by illegal aliens. You had the murder of Robert Krentz down by the border a few months ago. And so they are saying we simply want to help enforce existing federal law. It is not a new regime by any stretch.

RAY SUAREZ: So, Professor Gonzales, if I could get you to respond briefly to those final points that Professor Kobach made.

STEVEN GONZALES: Well, that’s really an admission, Ray, that the problem here is that the states do not have the authority to take that power and, for example, set national immigration policy or declare war. These are federal powers. They are not state powers.

RAY SUAREZ: So, even if they are complementary, it is just not in Arizona’s power to do so?

STEVEN GONZALES: Nor in any other state’s.

RAY SUAREZ: Well, we will be watching the court case in Arizona.

Gentlemen, thank you both for joining us.

KRIS KOBACH: Thank you.

STEVEN GONZALES: Thank you, Ray.