Wednesday, July 7, 2010

What's Next for United States v. Arizona

The immigration news of the week broke yesterday with the U.S. Department of Justice filing a challenge to the Arizona immigration law.  Law professor, and SB 1070 drafter, Kris Kobach quickly declared that the law will survive.

I have read the complaint and preliminary injunction brief filed yesterday by the United States in United States v. Arizona.  I must say that I was impressed, not a verb that I often use to describe my reaction to briefs filed by the Department of Justice in immigration cases.  The three claims for relief are based on the Supremacy Clause, federal preemption, and the Commerce Clause.  The complaint and the injunction papers sketch out a powerful argument about how national interests (imcluding foreign relations) are at stake in the regulation of immigration and how there must be one national immigration law, not a patchwork of 50 states' immigration laws. The argument of the United States is almost identical to the one I sketched out in an op/ed not long after the Arizona legislature passed its law.  

The lawsuit does not seek to invalidate all of SB 1070 but targets sections 1 through 6 of the law, those sections most directly dealing with immigration.  The United States does not challenge, for example, the sections of SB 1070 prohibiting the solicitation of work by day laborers. The lawsuit filed by  by the ACLU, MALDEF, and others go further and target the day laborer and other provisions of the law.

The case has been assigned to District Court Judge Neil Wake, who heard the Arizona business licensing case currently before the Supreme Court (Chamber of Commerce v.  Candelaria).  That case raises federal preemption issues but under a slightly different statutory provision (and one that in my view is more favorable to that Arizona law, which I still believe will be invalidated).  See here for more details on the case.  Judge Wake ruled against preemption (based in large part on statutory language exempting state licensing decisions from preemption) and rejected other legal challenges to the Arizona law.

Although United States v. Arizona has been assigned to Judge Wake, it has been reported that the United States will ask that the case be transferred to U.S. District Judge Susan Bolton, who has scheduled hearings for July 15 and 22 for other legal challenges already filed against SB 1070.


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