Does this mean that someone at the Department of Justice has actually read Arizona’s new law? Don’t get your hopes up quite yet about that, but ABC’s Pierre Thomas reports that discussions have already commenced on whether to fight the law in federal court. One catch, besides having someone read the text — because it would be a civil lawsuit, Barack Obama would have to approve the challenge:
A team of Justice Department attorneys has written a recommendation challenging the Arizona immigration law.
The draft recommendation, part of an ongoing Justice Department review, concludes the Arizona legislature exceeded its authority in crafting a law that could impede federal responsibility for enforcing immigration laws. …
The review, however, is not yet complete and there are some within the Justice Department who challenge the recommendation’s legal analysis. Sources tell ABC News that the ongoing review may take weeks more and that no formal recommendation has been sent to the White House.
The White House will have to give its stamp of approval for the Justice Department to challenge the law because this is a civil case.
What is the likelihood of getting that approval? So far, support for the Arizona bill remains much higher than Obama’s approval rating; even in the sympathetic sampling of the CBS poll, 52% think Arizona’s law is “just right,” and another 17% thinks it doesn’t go far enough. Only 28% believe it goes too far in fighting illegal immigration, a very small base on which to stand a few months before the midterms.
But if it’s unconstitutional, some will say, it shouldn’t matter if it’s popular, and politics shouldn’t be part of that decision. Indeed. And those 1200 National Guard troops suddenly heading towards the Arizona-Mexico border have nothing to do with Obama’s dropping approval ratings. Unless Eric Holder gives Obama an open-and-shut case, the White House will probably pass on the fight. Others will challenge the law in court without the DoJ’s involvement in any case, so why will Obama bother?
Speaking of which, a number of the bill’s defenders (including myself) has pointed to California’s penal code as an example of how Arizona’s new law fits in the mainstream. Section 834b contains almost identical language to SB 1070, a point of contention for rebuttals to calls for boycotts in California. However, as Judicial Watch noted last summer in a renewed attempt to validate parts of Proposition 187, that part of the penal code is unenforceable at the moment because of earlier actions by the federal court:
Judicial Watch asked the California Supreme Court to review two specific questions in its petition, filed on July 27.
First, Judicial Watch asked the California Supreme Court to settle the important question of whether federal law preempts California Penal Code 834b, which states, in part, that “Every law enforcement agency in California shall fully cooperate with the United States Immigration and Naturalization Service (now Immigration and Customs Enforcement) regarding any person who is arrested if he or she is suspected of being present in the United States in violation of federal immigration law.” The statute also prohibits local government entities from limiting the cooperation between local law enforcement officers and federal immigration officials.
The Court of Appeal failed to apply Penal Code 834b, finding that the provision, approved by voters in 1994 as part of Proposition 187, was preempted by federal law as “an impermissible regulation of immigration.”
“It is ironic, to say the least, that a statute enacted by California voters to promote cooperation and information sharing between state, local, and federal law officials on immigration matters would be dismissed so easily as an impermissible regulation of immigration when federal law so obviously seeks to promote these very same goals,” Judicial Watch states in its petition. (The federal Illegal Immigration Reform and Immigrant Responsibility Act of 1996 promotes the free flow of information between state and local officials and federal immigration authorities.)
As many as 18 other states have proposals similar to Arizona’s SB 1070 in the works, but relying on California’s penal code for support won’t work.