Department of Justice Attempts to Reassert Federal Authority Over Immigration Policy

Today, the United States Department of Justice (DOJ) filed a lawsuit against the state of Arizona in federal court. The lawsuit, prompted by passage of SB 1070 in the Arizona legislature, argues that federal law trumps the state statute and enforcing immigration law is a federal responsibility. The DOJ has requested a preliminary injunction to delay enactment of the law, arguing that the law’s operation will cause “irreparable harm.”

Arizona Governor Jan Brewer, however, remains obstinate. She told Fox News that “we’ll meet them in court…and we’ll win.” However, the Governor’s crystal ball may be a bit smudged. The American Immigration Council’s Legal Action Center has compiled a list of current and former lawsuits against state and local governments passing anti-immigrant legislation. While results vary, many states and localities either had their laws struck down or were forced to rescind their laws. All of them wasted their taxpayers’ money defending laws that should never have been passed.

Although states have always played a role in federal immigration enforcement, over the last 10 years more and more states have chosen to impose their local policies, priorities, and politics on our national immigration system. America can only have one immigration system, and the federal government must make clear where states’ authority begins and where it ends. The federal government must assert its authority to establish a uniform immigration policy that it can be held accountable for. In the current environment it is unclear who is responsible for setting immigration enforcement priorities and who is responsible for their success or failure.

Attorney General Holder stated:

Arizonans are understandably frustrated with illegal immigration, and the federal government has a responsibility to comprehensively address those concerns. But diverting federal resources away from dangerous aliens such as terrorism suspects and aliens with criminal records will impact the entire country’s safety. Setting immigration policy and enforcing immigration laws is a national responsibility. Seeking to address the issue through a patchwork of state laws will only create more problems than it solves.

While the Administration is at it, they might also look inward and correct other policies and programs that confuse the relationship between federal and state authority to enforce immigration laws. For example, the DOJ 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.

At the end of the day, a lawsuit alone will not end the vacuum created by the lack of workable immigration laws. While the DOJ takes up the legal challenge, the Obama Administration and Congress must put the immigration issue squarely back where it belongs – in the halls of congress and on the desk of the President of the United States.

Photo by Craig Crawford

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