Challenging illegal alien law before it takes effect obviously political or Holder is incompetent
Then Senator Barack Obama, famously during 2008 campaign debates in his future Secretary of State's home state, favored New York's motor-voter law that automatically registered non-citizens to vote when they obtained drivers licenses.
President Obama halted ongoing construction of the border fence upon taking the Oath of Office on January 20, 2009; refuses to submit a border security enhancement bill to Congress; and now, has not only refused to defend the Grand Canyon State's border against invasion and Mexican drug gang war spillover, but this week asked a federal judge to prevent Arizonans from defending themselves.
The legal geniuses of Attorney General Eric Holder's (pictured) Justice Department that dismissed an obvious case of voter intimidation against New Black Panther Party members, refused Khalid Sheik Muhammad's military tribunal 911 guilty plea to force an "OJ" trial on the City of New York, and insist on "Mirandizing violent extremists" as if they were mere shoplifters; now claim that the U.S. Constitution's "Supremacy Clause" requires that the yet-to-take-effect Arizona immigration law be "pre-empted" before it causes "racial profiling" or enmity with a foreign country.
Only non-advisory opinions in "cases and controversies"
Clearly, if Congress wanted to pass a bill prohibiting states from enforcing federal immigration laws, it would reign supreme. The problem is that not only has Congress not passed such a statute, federal and state cooperation in the processing of illegals seized by state law enforcement agencies is provided for in federal law.
Additionally, the manner in which the police, under the state statute recently signed into law by Arizona Governor Jan Brewer, are to identify federal immigration law violations mirrors federal statutes and the line of "stop and frisk" cases beginning with the civil liberties-sensitive Warren Court case ofTerry vs. Ohio (1968).
Moreover, Arizona revised the original statute, in late May, in response to criticism that it "could lead" to racial profiling, to go beyond current federal law and Supreme Court precedents to absolutely prohibit "race" as a factor in determining the presence of "articulable suspicion" of the violation of immigration laws that would allow an inquiry into the status of a suspect already stopped, detained or arrested.
Clearly, current law is more likely "to lead" to racial profiling than Arizona's. Moreover, the Constitution only provides for jurisdiction in "cases and controversies", which would require that an alleged victim of the law make a complaint.
I did mention that the law has not even taken effect, as we speak?
Given the absence of what the law calls "ripeness" and the absence of any Congressional act "preempting the field" of immigration enforcement; the only grounds available for Obama to argue that the statute be struck down would be if the statute were "unconstitutional on its face", such as an obvious state interference with the executive's conduct of foreign policy.
But given that Arizona has not the power to deport, but can only identify illegals and refer them for prosecution to the federal government, it seems unlikely that the mere continuing enforcement of federal immigration laws by a U.S. state under more liberal standards than the U.S. holds for itself, would not qualify as unconstitutionally inhibiting presidential diplomacy with Mexico.
This strategy is especially curious given the obvious Supremacy Clause violations of "sanctuary cities" that not only refuse to enforce federal law but go one step further and invite illegal immigration and illegal immigrants (H/T Pilgrim of The Minority Report).
I imagine the Obama Administration could ask Congress to pass a law preempting the enforcement of Arizona's law.
But the Law Factory thinks even ObamaDems would balk at such a move, which would be akin to a December 8, 1941 law prohibiting Hawaii and California from repelling the Imperial Empire of Japan.
[Originally posted at 73 Wire Law Factory]
"One man with courage makes a majority." - Andrew Jackson