Another liberal bubble is popped; liberalism marches on

After the national outpouring of liberal hysteria about the “Nazi-like” anti-illegal alien law signed by Gov. Janice Brewer of Arizona, and the boycotts against that state initiated by various local and state governments, the suit filed this week by the Justice Department against Arizona must be a huge let-down for liberals. In a deflated-sounding piece in today’s New York Times, Randal Archibold abashedly explains why the Obama administration has chosen to challenge the law, not on the basis of the anti-American, the monstrous, the Nazi-like racial profiling which it supposedly requires police officers to practice, but on the basis that the law “pre-empts” federal immigration law. Very simply, he says, the Obamites realized that there were no grounds for the racial profiling claim. Unfortunately for the Obamites, I say, there also are no grounds for saying that the Arizona law pre-empts—interferes with—federal law, so they are going to embarrass themselves anyway. I think that they are launching on this quixotic and destructive venture solely to keep their liberal creds and the support of their Hispanic constituents.

As always, the primary liberal act is not to do anything good and useful in the world, but to assert one’s identity and virtue as a liberal.

Arizona Challenge Does Not Focus on Profiling

PHOENIX—In the public outcry that followed passage of Arizona’s new immigration law, President Obama and other critics worried that it would lead to racial profiling. But while that concern has dominated the public debate and inspired a round of boycotts of the state, it played little role in the actual legal challenge the administration filed Tuesday against the law.

The word profiling appears only once, in passing, in the Justice Department’s lawsuit against the law, which allows the police to demand legal papers from those its officers think might be illegal immigrants.

And while the lawsuit does argue against a patchwork of state immigration laws Mr. Obama has fretted over, the idea that legal residents and citizens might find themselves swept up in Arizona’s enforcement, which is intended to discourage illegal immigrants from coming and prompt those here to leave, is not a central argument.

In this case it is clear the administration’s arguments in the court of public opinion took a backseat to those expected in the actual courtroom.

Justice Department officials and legal experts say the government, political consequences aside, faced up to cold legal practicalities. Racial profiling claims are difficult enough to prove, let alone before a law takes effect, and there are no examples that prosecutors can point to of legal citizens whose lives were disrupted by the Arizona law because they looked like an illegal immigrant to a police officer.

Dennis Burke, the United States attorney here, said in an interview that focusing the case on “pre-emption,” the legal doctrine based on the Constitution’s supremacy clause that elevates federal law over states’, was the surest route to suspending the law before it goes into effect July 29. The federal government has successfully used the pre-emption argument in several cases, but this would be the biggest test in an immigration case.

“The supremacy clause and a pre-emption argument require no waiting for the law to be actually in implementation,” Mr. Burke said. “It doesn’t allow the defense to say, ‘They are in here too early, judge, this should be allowed to play out for a while.’ “

The Arizona law, known as SB 1070, requires police officers to check the papers of people they stop or arrest if suspicious of their immigration status and makes it a state crime to be in the country without authorization.

The Justice Department did argue in its suit that the law “will cause the detention and harassment of authorized visitors, immigrants, and citizens who do not have or carry identification documents specified by the statute, or who otherwise will be swept into the ambit of S.B. 1070’s ‘attrition through enforcement’ approach.”

But people on both sides of the debate concede racial profiling is not what the Justice Department case, the biggest gun in the legal fight, is about.

To supporters of the law, this is validation of their claims that the law, which includes language forbidding profiling, is not discriminatory.

“It’s nice to see the Obama administration finally concede there is no allowance for racial profiling in Arizona’s immigration law,” said Kirk Adams, the Republican speaker of the Arizona House of Representatives. “After all the sound and fury about discrimination, it’s now clear that the administration’s entire case against SB 1070 rests on a technical claim that the law is indirectly pre-empted by federal immigration law.”

United States Representative Trent Franks, an Arizona Republican, said Mr. Obama’s discrimination worries are “glaringly absent from his lawsuit.”

“It is beyond ironic,” Mr. Franks added, “that the main claim in the lawsuit is that Arizona is wrongly pre-empting a federal responsibility when the entire reason the legislation was necessary in the first place was precisely because the federal government was simply not living up to its responsibility.”

And it turns out Kris Kobach, the University of Missouri law professor who wrote the bill for legislators here, had accurately predicted the government’s stronger case would rest over who has authority over immigration law and not concerns about racial profiling.

Lawyers in the other five lawsuits against the law that play up the potential for discrimination shrugged off their opponents’ glee, saying the government shrewdly chose not to “throw the kitchen sink” at the state, as Thomas A. Saenz of the Mexican American Legal Defense and Educational Fund put it.

They were happy the government stepped in and did so forcefully, even raising arguments, like the potential effect on diplomatic affairs, that others had not emphasized.

“I am overwhelmed by their case,” said Stephen Montoya, the lawyer for a Phoenix police officer who has sued, in part, on the basis that he would be forced to consider people’s race or ethnicity to enforce the law.

He and others said they had played up the possibility of racial profiling because, unlike the federal government, they represent clients who might be affected by the law and its repercussions.

Above all, they said, they will take anything that stops the law, even if it does not turn on what all the fuss has been about.

“To me it’s clear the Justice Department’s goal is to stop the law from going into effect and prevent the harassment and racial profiling from occurring,” said Lucas Guttentag, a lawyer for the American Civil Liberties Union.

[end of Times article]

- end of initial entry -

Eleanor S., an attorney, writes:

Randal Archibold’s article is ambiguous about the doctrine of pre-emption, leading you to write that DOJ is claiming that the Arizona law “pre-empts” Federal law. This is not the claim; a state law cannot pre-empt a Federal law. The pre-emption argument against a state law is that the state law is pre-empted by Federal law.

LA writes:

Then could you put in one or two sentences a correct description of the DoJ’s case against the Arizona law?

Eleanor S. replies:

The Supremacy Clause of the Constitution, Article VI paragraph 2, tells us that acts of Congress take precedence over state laws. The doctrine can be applied when state law conflicts with Federal law, or when state law is pre-empted by Federal law. Pre-emption occurs when a state law covers matters that are in the purview of the Federal government; the state law must give way. Article I of the Constitution gives Congress the authority to regulate immigration and naturalization. The DoJ argues that Arizona’s state law is pre-empted by Federal law regarding immigration.

This is not the only argument the DoJ is making against the Arizona law, but I don’t want to be too wordy. Archibold’s article summarizes the other DoJ assertions pretty well. Hope this helps!

Posted by Lawrence Auster at July 08, 2010 11:08 AM | Send

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