Arizona immigration fight to move to the courtroom
The ACLU and other groups say the key legal issue is whether the state law
interferes with the federal governmentfs duty to handle immigration, which sunk
Proposition 187 in California.
By Teresa Watanabe and Anna Gorman
Los Angeles Times
April 29, 2010
As the furor over Arizona's strict new immigration law escalates, immigrant
advocates are preparing to move the fight to the courtroom, where their legal
challenges have successfully sunk other high-profile laws against illegal
migrants.
The American Civil Liberties Union, Mexican American Legal
Defense and Educational Fund and the National Immigration Law Center are set to
announce in Phoenix on Thursday plans to challenge the measure. U.S. Atty. Gen.
Eric Holder said this week that he was considering a possible legal challenge to
the law.
The law, which is set to take effect in midsummer, makes it a
state crime for illegal migrants to be in Arizona, requires police to check for
evidence of legal status and bars people from hiring or soliciting work off the
streets.
The key legal issue, according to lawyers on both sides, will be
one that also was at the center of the court fight over Proposition 187 in
California — whether the state law interferes with the federal government's duty
to handle immigration.
The announcement of legal action, one of several
expected as attorneys across the country scrutinize the law for weaknesses,
comes after days of frantic e-mails, conference calls and lengthy strategy
sessions. Attorneys haven't finalized a date when a court challenge would be
filed, but said it would be before the law takes effect.
"The entire
country has been galvanized," said Marielena Hincapie, executive director of the
National Immigration Law Center. "People within the legal community are trying
to figure out what we can doc. We have seen an enormous amount of energy
responding to this."
Attorneys who successfully challenged laws against
illegal immigrants in California, Texas and elsewhere argue that the Arizona law
faces a similar fate because of the federal/state issue. Immigrant advocates
also argue that the law could violate guarantees of equal protection if
selectively enforced against certain ethnic groups.
"The Arizona law is
doomed to the dustbin of other unconstitutional efforts by local government to
regulate immigration, which is a uniquely federal function," said Peter Schey, a
Los Angeles attorney who led successful challenges to the 1975 Texas law denying
illegal migrant children free public schooling and the 1994 California
initiative that would have barred public services to illegal migrants. Schey
said he also planned to file a separate lawsuit.
But the attorney who
helped write the Arizona law said he carefully crafted the measure to avoid
those constitutional issues.
Kris Kobach, a University of Missouri-Kansas
City law professor who handled immigration law and border security under U.S.
Atty. Gen. John Ashcroft during the Bush administration, said the law does not
seek to regulate immigration but merely adds state penalties for what are
already federal crimes.
Under the legal doctrine of "concurrent
enforcement," he said, states are allowed to ban what is already prohibited by
federal law. As an example, he said, the courts have upheld efforts by Arizona,
California and other states to enact sanctions against employers who hire
illegal migrants.
Kobach, who is running as a Republican candidate for
Kansas secretary of state, also dismissed claims that the bill will result in
racial profiling. He said he took care to include an explicit ban on using
"race, color or national origin" as the sole basis for stopping someone to ask
for papers.
"I anticipate that anyone who challenges the law will throw
everything but the kitchen sink at this to see if it will stick," Kobach said.
"But this is consistent with federal law."
Indeed, immigrant advocates
raise several legal questions. The portion of the law that prohibits laborers
from soliciting work in public places is particularly vulnerable, said Thomas
Saenz, president and general counsel of the Mexican American Legal Defense and
Educational Fund.
The organization has successfully challenged similar
laws in Arizona and California. In 2008, a federal judge ruled that an Arizona
town could not enforce an anti-solicitation ordinance that advocates said
infringed upon the free speech rights of day workers.
In addition, there
probably will be due-process claims because police officers won't know who would
be eligible for immigration relief, Saenz said. Many arrested won't have the
opportunity to make their claims in U.S. Immigration Court.
"There are a
lot of people who are going to be arrested and swept into this dragnet who have
every right to be in this country," he said.
Even before lawsuits are
filed, immigrant advocates are seeking a commitment from federal officials that
they will not enforce the law.
On Tuesday, Homeland Security head Janet
Napolitano testified before a Senate Judiciary Committee that the law could
distract the agency from using its resources to go after serious
criminals.
"We have concerns that at some point we'll be responsible to
enforce or use our immigration resources against anyone that would get picked up
in Arizona," said Napolitano, who noted that she had vetoed similar measures as
Arizona governor.
Another lawsuit may come from one of Arizona's own
elected officials. Phoenix Mayor Phil Gordon said this week that he planned to
file a lawsuit.
"I have under the charter the ability given to me by the
people to file a lawsuit on behalf of the people," Gordon said Tuesday to cheers
from a packed City Council meeting and one angry cry of "socialism!"
As
both sides gear up for their legal battle, the wild card is the panel of judges
who will end up deciding the case.
Judges have ruled differently on key
immigration questions. In 2007, a federal judge ruled that a Pennsylvania city
couldn't punish landlords who rent to illegal immigrants and employers who hire
them. A federal judge also ruled against a Texas measure that sought to ban
landlords from renting to illegal migrants.
Advocates didn't succeed,
however, in getting the courts to block another Arizona law, which shuts down
businesses for knowingly hiring illegal immigrants. In 2008, the U.S. 9th
Circuit Court of Appeals in San Francisco refused to stop the law before it took
effect, saying that businesses and immigrant rights groups hadn't shown an
adequate need for delaying enforcement.
Schey said he was not confident
that legal challenges against the Arizona case would prevail in today's
political and legal climate. The U.S. Supreme Court is a very different panel
today than it was when a narrow majority of 5 to 4 struck down the 1975 Texas
law denying free schooling to unauthorized migrant children.
"It's a far
cry from a slam-dunk case," Schey said. "It's a very close call with the current
composition of the Supreme Court. What's really needed here is federal
leadership."
But Erwin Chemerinsky, UC Irvine's law school dean, argued
that the Arizona law is a far more brazen attempt to regulate immigration than
either the Texas or Proposition 187 cases. The Texas law was overturned
primarily on equal protection grounds, while the California law was struck down
as an unconstitutional attempt to usurp federal immigration
responsibility.
"It is so firmly established that only the federal
government can control immigration that I don't see it," he said, referring to
chances that courts would uphold the Arizona law. "Even with a conservative
court and a lot of sympathy to Arizona's concerns, I don't see it."
teresa.watanabe@latimes.com
anna.gorman@latimes.com
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