The federal judge who heard the preliminary arguments in the lawsuit brought by the Obama administration against Arizona over its immigration-enforcement law found a likelihood that the effect would be to force the federal government to reallocate its enforcement resources to meet the demand, and Judge Susan Bolton ruled that would impermissibly pre-empt federal prerogatives in immigration enforcement.  US News’ Chris Battle finds one problem with that argument.  In 1996, the federal government passed a law encouraging states to do exactly what Arizona planned to do with SB1070 — and a number of states have followed suit:

Back in 1996 (when fanny packs were still cool, in some circles) it was time to get tough on immigration, and an interesting little law was passed. Congress deemed it appropriate for state and local law enforcement to enforce immigration law. In the inscrutable manners of Washington (where all legislation seems to be named with insufferably cute acronyms or indecipherable legislative codes that read like security passwords), this law came to be known as 287g.

Want to know what 287g says? Well, just read the law in Arizona. Yes, that law. The one causing protests in the streets of Phoenix, hysteria on cable talk shows and confusion in the courts. The one that empowers state and local law enforcement to enforce immigration law.

The federal law that has been on the books for more than decade … empowers state and local law enforcement to impose immigration law. According to U.S. Immigration and Customs Enforcement, more than 60 jurisdictions in states across the country have taken advantage of this law.

Florida, Virginia, Oklahoma, Ohio, New Hampshire, California, and even Massachusetts are among the states in which local police are enforcing immigration law.

The two laws aren’t quite identical, but 287g and SB1070 have the key points in common:

There are differences in the federal and Arizona law but the primary gist of each–the aspect that has caused most of the ruckus–is the provision that allows a local law enforcement officer, who in the course of his or her regular duties has reasonable suspicion that an individual is in the country illegally, to request identification and, if none is provided, to detain that individual for potential deportation.

But there is an important hitch to using this as a counter to the DoJ suit:

The federal version of the law requires the Department of Homeland Security to approve state and local requests to enroll in the program; then ICE is to provide training and assume supervision of cross-designated officers when they are engaged in immigration enforcement. The Arizona law, on the other hand, actually requires all law enforcement to enforce immigration laws regardless of whether DHS has given its blessing. If the federal law is gingerly tip-toeing into the shallow end of the immigration pool, the Arizona law is a cannonball dive into the crowded deep end.

Well, that could be another pre-emption argument.  Congress authorized ICE to deputize states and localities, in a sense, to enforce immigration law.  If Arizona claims to deputize itself, that would be a challenge to the law Congress passed, albeit in a completely different sense than the DoJ argued pre-emption in Bolton’s court.  That may be why Arizona may have avoided making this point in its defense.

However, it is clear that this law undermines the DoJ’s pre-emption argument that states can’t reallocate federal enforcement resources.  Not only should they be able to do that on any rational sense of law enforcement — does the DoJ reject referrals on drug charges because they don’t like prosecuting a lot of those cases? — but clearly Congress intended the states to do just that.  It makes a lot more sense to use existing state and local law enforcement to find and detain illegal immigrants and refer them to the feds than to create a new, large, and duplicative law enforcement agency under ICE in every state to do that job.

Congress should press DHS to deputize Arizona’s police and sheriffs as part of the 287g program and end the nonsense lawsuit that puts the Obama administration in the position of suing to stop enforcement of laws it’s failing to enforce itself.