The decision by the Department of Justice to sue Arizona over its harsh immigration legislation is expected to block implementation of the law, but immigrant rights activists argue that this is only the first step to minimizing the harmful impact of unfair enforcement practices.
Under Arizona’s SB 1070 law, police officers are allowed to question anyone suspected of being an undocumented immigrant – signed into law in April 2010, it instructs any immigrant to “at all times carry with him … any certificate of alien registration or alien registration receipt card issued to him” and has earned Arizona the nickname of the “show me your papers” state.
The complaint, filed by the Department of Justice (DOJ) in a federal court in Phoenix, calls for an injunction on the grounds that the Arizona law violates the supremacy clause of the Constitution, which says oversight of immigration enforcement is solely the prerogative of the federal government.
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“Although a state may adopt regulations that have an indirect or incidental effect on aliens, a state may not establish its own immigration policy or enforce state laws in a manner that interferes with federal immigration law,” said the DOJ’s request for an injunction. “The State of Arizona has crossed this constitutional line.”
In a statement released shortly after the DOJ announcement, the Immigration Policy Center said: “While we applaud the administration’s decision to challenge the constitutionality of the Arizona law, we urge it to also look inward and correct other policies and programs that confuse the relationship between federal and state authority to enforce immigration laws.”
This sentiment was echoed in interviews Truthout conducted with representatives from No More Deaths, the Center for Human Rights and Constitutional Law, the Arizona Advocacy Network and the National Day Laborers Organizing Network.
Danielle Alvarado, a spokesperson for No More Deaths, which works to provide humanitarian aid to migrants, said, while the DOJ lawsuit was a first step, SB 1070 was only “a symptom of the anti-immigrant sentiment. It is not just about one piece of legislation.”
Alvarado said her organization and others plan to continue a planned mobilization in Arizona on July 29, the day SB 1070 was planned to take effect, to protest “the fact that we’re living in a state where those types of laws are passed in the first place.”
According to the Immigration Policy Center, “the Department of Justice should rescind an Office of Legal Counsel memo issued in 2002 which opened the door for greater state action by reaching the, politically motivated, decision that states had inherent authority to enforce immigration laws. In addition, the Department of Homeland Security should rescind the 287(g) agreement in Maricopa County, Arizona where it has become clear that the agreement is being abused.”
Under section 287(g) of the Immigration and Nationality Act, the federal government can enter into immigration agreements with state and local law enforcement agencies. Eight agencies in Arizona have already signed agreements with the Department of Homeland Security (DHS), which allows them the authority to “verify or ascertain an alien’s immigration status.” Maricopa County, home of Sheriff Joe Arpaio, is particularly infamous for its treatment of immigrants.
Under SB 1070, the state’s officers would need to use federal immigration databases provided by the DHS to assess immigration status, which critics such as the AFL-CIO say could mean “the federal government will be complicit in the racial profiling that lies at the heart of the Arizona law.”
Sunita Patel, a staff attorney at the Center for Constitutional Rights, said it is very likely that the injunction will be granted. This law is, “to many of us in the civil rights community, a pretty compelling case of where the supremacy clause should be evoked,” she said, noting the section of the Constitution which calls federal authority is “the supreme law of the land.” Therefore, “the federal government has exclusive jurisdiction over the borders and that means immigration law.”
Patel said she welcomed the decision by the DOJ especially because, from the perspective of an employee of an organization which litigates racial profiling, “this law is going to really exacerbate a problem that already exists in Arizona where undocumented and immigrant brown-skinned people feel that they are under siege by the police. This is just going to create an unjust and immoral situation.”
The hearing to decide whether to grant an injunction based on the DOJ lawsuit against Arizona’s law will be held on the 22nd of July, only days before the bill is expected to be implemented.
Earlier that day in the same courtroom, the federal court in Phoenix will hear an argument against the bill put forward by a lawsuit filed by the American Civil Liberties Union (ACLU) in conjunction with other organizations.
Unlike the DOJ lawsuit, which focuses on provisions 1-6 in Arizona’s immigration bill, the ACLU lawsuit considers the entire bill invalid on the basis of arguments including preemption, a violation of an individual’s First Amendment rights and the possibility of racial profiling.
Though the DOJ suit says SB 1070 will “cause the detention and harassment of authorized visitors, immigrants and citizens who do not have or carry identification documents” and ignores “humanitarian concerns,” this is not the main focus of its argument.
Daniel Pochoda, legal director of the Arizona ACLU, said he does not expect the narrower focus of the DOJ lawsuit to be an obstacle to getting an injunction.
The DOJ lawsuit said it recognizes that “Arizonans are understandably frustrated with illegal immigration” but argues that addressing the issue “through a patchwork of state laws will only create more problems than it solves.”
This lawsuit will be closely watched across the country, as at least 20 states consider restrictive immigration legislation similar to SB 1070.
Lucas Guttentag, director of the ACLU Immigrants’ Rights Project, said he hopes the administration’s lawsuit will serve as “a cannon shot across the bow of other states that may be tempted to follow Arizona’s misguided approach.”