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July 06, 2010

Suit Challenging Arizona Law's Constitutionality Will Soon Be Filed
BUMP: DOJ Just Filed

BUMP [Gabe]: FoxNews is reporting that the Department of Justice just filed. More info as I get it.

Here's a vague news slug. No more info than Ace had below.

Original Post:
"Later," the WSJ says, quoting anonymous administration officials, suggesting later today or tomorrow (or else why else re-break the news?).

The Obama administration has criticized the law and the Justice Department's challenge is expected to argue that it infringes on federal responsibilities for immigration, the officials said.

Federal responsibilities.

I need to hear from some lawyers on this, because I've been wondering. It is accepted constitutional law (whether you agree or not, it's accepted) that states cannot pass laws which conflict with federal law in areas of federal jurisdiction.

In this case, however, the Arizona law does not conflict with federal law; it in fact restates it. Deliberately, to be as constitutional as possible and to set up a good question:

Yes, a state law cannot conflict with a federal law in an area of federal jurisdiction, but can a state policy conflict with a federal policy if both state the same law?

In other words -- Arizona's law is the same as the feds'. The big difference is not in the law, but in the policy: the feds have a policy of non- or minimal enforcement; they are angry at Arizona not because Arizona has passed fresh law but because Arizona intends a different policy -- a policy of actual enforcement.

So yes, federal law trumps state law, but does mere federal policy trump state policy, especially when federal policy is in fact at odds with its own stated law?

Can the feds basically argue that it's their policy to ignore the law and then demand that Arizona be instructed by the Supreme Court to follow them in their policy of ignoring the law?

What About Discrimination? Good point from Ed Morrissey:

Furthermore, this is weak tea compared to the Obama administration’s rhetoric on the subject. They have spent the last three months declaring this unconstitutional on the basis of discrimination. If that were true, the government would have made that its primary argument. The fact that they’re going with pre-emption means that they’re conceding that the discrimination argument never held water — and that their accusations of bigotry against Arizonans were nothing more than demagoguery.

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posted by Ace at 02:32 PM

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