Obama
Administration Challenges Arizona E-Verify Law
The Obama administration has asked the
Supreme Court to strike down a 2007 Arizona law
that punishes employers who hire illegal aliens, a law enacted by then-Governor
Janet Napolitano. (Solicitor General's Amicus Curiae Brief). Called the “Legal Arizona Workers Act,” the law
requires all employers in Arizona to use E-Verify and provides that the
business licenses of those who hire illegal workers shall be repealed.
From the date of enactment, the Chamber of Commerce and other special interest
groups have been trying to undo it, attacking it through a failed ballot
initiative and also through a lawsuit. Now the Chamber is asking the United
States Supreme Court to hear the case (Chamber of Commerce v. Candelaria),
and the Obama Administration is weighing in against the law.
To date, Arizona’s E-Verify law has
been upheld by all lower courts, including the Ninth Circuit Court of Appeals.
The Ninth Circuit, in particular, viewed it as an exercise of a state’s
traditional power to regulate businesses. (San Francisco Chronicle, June 2, 2010). Obama’s Justice Department, however,
disagrees. Acting Solicitor General Neal Katyal said in his filing with the
Supreme Court that the lower courts were wrong to uphold the statute because
federal immigration law expressly preempts any state law imposing sanctions on
employers hiring illegal immigrants. Mr. Katyal argues that this is not a
licensing law, but “a statute that prohibits the hiring of unauthorized aliens
and uses suspension and revocation of all state-issued licenses as its ultimate
sanction.” (Solicitor General's Amicus Curiae Brief, p. 10). This is the administration’s first court
challenge to a state’s authority to act against illegal immigration, and could
be a preview of the battle brewing over Arizona’s recent illegal immigration
crackdown through SB 1070.
Napolitano has made no comment on the
Department of Justice’s decision to challenge the 2007 law, but federal
officials said that she has taken an active part in the debate over whether to
do so. (Politico,
May 28, 2010). As Governor of Arizona, Napolitano said she believed
the state law was valid and became a defendant in the many lawsuits against it.
(Id.).
*
Heather Mac Donald: White House doesn't
want to enforce immigration
By: Heather Mac Donald
OpEd Contributor
August 4, 2010
OpEd Contributor
August 4, 2010
The real motivation for the
Justice Department's lawsuit against Arizona's new immigration statute was the
only one not mentioned in the department's brief: The Obama administration has
no intention of enforcing the immigration laws against the majority of illegal
aliens already in the country.
It is that policy alone
which conflicts with SB 1070: Arizona wants to enforce the law; the Obama
administration does not. Reasonable minds can differ on whether that conflict
puts Arizona in violation of the Constitution's Supremacy Clause.
But what is indisputable is
that the failure of the federal government to openly acknowledge the real
ground for its opposition to SB 1070 has rendered incoherent not just its own
public arguments against the law, but the judicial ruling which largely rubber
stamps those arguments as well.
The Arizona statute affirms
the power of a local police officer or sheriff's deputy to inquire into
someone's immigration status, if the officer has reasonable suspicion that the
person is in the country illegally, and if doing so is practicable. Under SB
1070, such an inquiry may occur only during a lawful stop to investigate a
non-immigration offense.
Both the Justice Department
and U.S. District Judge Susan Bolton, in striking down most of SB 1070, couched
their opposition to the statute exclusively in terms of its effect on legal, as
opposed to illegal, aliens. SB 1070, Judge Bolton wrote, would impermissibly
burden legal immigrants already in the country by subjecting them to
unwarranted immigration checks.
There are two problems with
this line of argument: First, it ignores the fact that Congress has already
anticipated and approved precisely the sort of local immigration inquiries that
Judge Bolton now finds unconstitutional. Second, the argument would make all
immigration enforcement impossible.
In 1996, Congress banned
so-called sanctuary policies, by which cities and states prohibit their
employees from working with federal immigration authorities regarding illegal
aliens. It was in the federal interest, Congress declared, that local and
federal authorities cooperate in the "apprehension, detention or removal
of [illegal] aliens."
In pursuance of that
mandate, the federal government operates an immigration clearinghouse, the Law
Enforcement Support Center (LESC), to provide just the sort of
immigration-status information to local and state law-enforcement officials
that SB 1070 seeks.
It is therefore absurd to
now claim, as Judge Bolton and the Obama Administration do, that such local
inquiries conflict with the federal immigration scheme. It is even more absurd
to argue that the risk that a legal alien will be questioned about his
immigration status makes the alleged conflict unconstitutional.
Any immigration enforcement
carries the possibility that a legal alien or U.S. citizen will be stopped and
questioned. The only way to guarantee that legal aliens are never asked to
present their immigration papers is to suspend immigration enforcement
entirely. (The same possibility of stopping innocent people for questioning
applies to law enforcement generally; that possibility has never been held to
invalidate the police investigative power.)
If Congress intended to
create such a blanket ban on asking legal aliens for proof of legal residency,
it could have revoked the 1952 law requiring aliens to carry their certificate
of alien registration. Such a requirement makes sense only on the assumption
that legal aliens will upon occasion be asked to prove their legal status.
Such unpersuasive reasoning
suggests that something else is going on. That something is the fact that SB
1070 would have put the Obama administration in the uncomfortable position of
repeatedly telling Arizona's law enforcement officers that it is not interested
in detaining or deporting the illegal aliens that they have encountered in the
course of their duties; the law, in other words, would have exposed the
administration's de facto amnesty policy.
And SB 1070 would have
shown that immigration-law enforcement can work simply by creating a deterrent
to illegal entry and presence. Even before it went into operation, the Arizona
law was already inducing illegal aliens to leave the state, according to news
reports.
Illegal aliens are
virtually absent from the Justice Department's brief or from Judge Bolton's
opinion. Despite this studied avoidance, it's time to have a public debate
about how much immigration enforcement this country wants and which enforcement
policies--the administration's or Arizona's -- best represent the public will.
Heather
Mac Donald is a contributing editor of City Journal and co-author of The
Read more at the Washington Examiner: http://www.washingtonexaminer.com/opinion/columns/White-House-doesn_t-want-to-enforce-immigration-1007060-99891419.html#ixzz0w8gI2nha
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