US vs. Arizona - What Justifies This Use of Federal Force?

Last week, the US Department of Justice sued the state of Arizona to seek to have that state's controversial immigration law declared invalid under the US Constitution's Supremacy Clause
because "the federal government has preeminent authority to regulate immigration matters". The US complaint, which was filed in the federal district court for the District of Arizona, starts with the allegation that:

"S.B. 1070 [i.e. the Arizona immigration law under attack] pursues only one goal – 'attrition' [in order to discourage and deter the unlawful entry and presence of aliens in the state through law enforcement] – and ignores the many other objectives that Congress has established for the federal immigration system."

This statement ignores the Arizona statute's first sentence, which is:

"The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona."

Throughout the state law there are repeated references to Arizona law enforcement authorities contacting and working with federal authorities in order to verify a detainee's immigration status and to transport illegal aliens to the custody of federal law enforcement agencies. The clear purpose of the law is to work in concert with the federal government in enforcing federal immigration law.

The US complaint even acknowledges that the federal government looks favorably on states assisting with the enforcement of federal immigration laws:

"The federal government, moreover, welcomes cooperative efforts by states and localities to aid in the enforcement of the nation’s immigration laws. But the United States Constitution forbids Arizona from supplanting the federal government’s immigration regime with its own state-specific immigration policy – a policy that, in purpose and effect, interferes with the numerous interests the federal government must balance when enforcing and administering the immigration laws and disrupts the balance actually established by the federal government."

There are a range of programs offered by US Immigration and Customs Enforcement (ICE) that are designed to engage local and state law enforcement agencies in cooperative efforts to enforce the federal immigration laws. Most of these are provided pursuant to ICE Agreements of Cooperation in Communities to Enhance Safety and Security (ACCESS) that provide state and local law enforcement agencies an opportunity to team with ICE in addressing immigration problems in their communities.

A list of the programs provided under ACCESS can be found at
http://www.ice.gov/pi/news/factsheets/access.htm. At least, seven state, county and municipal law enforcement agencies in Arizona have signed ACCESS agreements with ICE.

The Justice Department's objection, as expressed in its complaint, is that Arizona is trying to "supplant" federal immigration laws. However, there is no intent in the Arizona law to supplant or replace federal law with another type of immigration program. All through the state law, it refers to using federal legal requirements and law enforcement resources to assure that persons detained, held or arrested by Arizona authorities are legally present in the country before they are released from local custody. This state purpose appears very consistent with the purpose of the ICE programs offered under the ACCESS agreements. The Arizona law is not setting up a new immigration program to supplant the the federal laws.

The US complaint acknowledges that the federal government has resources that are made available to state authorities to help determine the status of foreign nationals. However, DOJ is concerned about the burden that helpful cooperative Arizona police officers may impose on those federal resources:

"Mandatory state alien inspection schemes and attendant federal verification requirements will impermissibly impair and burden the federal resources and activities of DHS. S.B. 1070’s mandate for verification of alien status will necessarily result in a dramatic increase in the number of verification requests being issued to DHS, and will thereby place a tremendous burden on DHS resources, necessitating a reallocation of DHS resources away from its policy priorities. As such, the federal government will be required to divert resources from its own, carefully considered enforcement priorities – dangerous aliens who pose a threat to national security and public safety – to address the work that Arizona will now create for it."

So the federal government is concerned that Arizona will increase its workload in verifying the immigration status of foreign nationals who are detained by state and local law enforcement agencies because it will divert the DHS resources from seeking out "dangerous aliens". It would seem reasonable to assume that aliens detained by police officers in Arizona may include some who are dangerous. If so, it would seem that Arizona would be assisting the federal government in carrying out its priorities, not just interfering with its goals.

Based on the President's speech at American University the week before this lawsuit was filed, it appears that the federal government could use the assistance of Arizona police and others in enforcing immigration laws. Here is some of what the President said:

"To begin with, our borders have been porous for decades. Obviously, the problem is greatest along our Southern border, but it’s not restricted to that part of the country. In fact, because we don’t do a very good job of tracking who comes in and out of the country as visitors, large numbers avoid immigration laws simply by overstaying their visas....

More fundamentally, the presence of so many illegal immigrants makes a mockery of all those who are going through the process of immigrating legally. Indeed, after years of patchwork fixes and ill-conceived revisions, the legal immigration system is as broken as the borders....

The result is an estimated 11 million undocumented immigrants in the United States....

In sum, the system is broken. And everybody knows it......

But our borders are just too vast for us to be able to solve the problem only with fences and border patrols. It won’t work. Our borders will not be secure as long as our limited resources are devoted to not only stopping gangs and potential terrorists, but also the hundreds of thousands who attempt to cross each year simply to find work."

If the federal immigration legal scheme is so broken, as President Obama put it, why would the federal government not want the assistance of Arizona in stopping the flow of illegal immigrants through that border state? The existing programs offered by ICE appear to suggest that the cooperation and assistance of state agencies is very well accepted as an important part of the federal law enforcement system established under the US immigration laws.

Maybe the answer can be found in this statement in the US complaint against Arizona:

"The [federal immigration law] also vests the executive branch with considerable discretion in enforcing the provisions of the federal immigration laws, generally allowing federal agencies to ultimately decide whether particular immigration remedies are appropriate in individual cases."

In other words, the US government wants to decide, based on its own discretion, whether to always enforce the laws intended to keep foreign nationals from illegally entering the country. If the US goal is not to keep all illegal aliens out of the country, of course, they would not want Arizona or any other state to help it stop every alien from illegally crossing the borders into the US. That must be why DOJ sees the Arizona law as interfering with federal law.

This would mean, of course, that a discretionary amnesty program is already in effect, operating under the radar and out of sight of most American citizens, which apparently includes state governors and legislatures. If this is the case, why would there be a need for a new comprehensive reform of federal law at all? The President and his Administration can already enforce the immigration laws at their discretion. And it is that discretion that the Obama Administration does not want Arizona to interfere with or supplant. Sphere: Related Content