Justice Dept. Will Fight Arizona on Immigration
By RANDAL C. ARCHIBOLD and MARK LANDLER
New York TimesPublished: June 18, 2010
The Obama administration has decided to file a lawsuit to strike down a new Arizona law aimed at deporting illegal immigrants, thrusting itself into the fierce national debate over how the United States should enforce immigration policies.
The federal government only occasionally intervenes forcefully in a state’s affairs, and it carries significant political risks. With immigration continuing to be a hot issue in political campaigns across the country, the Arizona law, which grants the local police greater authority to check the legal status of people they stop, has become a rallying cry for the Tea Party and other conservative groups.
The lawsuit, though widely anticipated, was confirmed by an unexpected source: Secretary of State Hillary Rodham Clinton, who answered a question about it from an Ecuadorean TV journalist in an interview on June 8 that went all but unnoticed until this week.
Noting that President Obama had publicly objected to the law, Mrs. Clinton said, “The Justice Department, under his direction, will be bringing a lawsuit against the act.”
A spokesman for the Justice Department said the matter was still under review, but other senior administration officials, speaking on the condition of anonymity, said a decision had indeed been made and only the details of the legal filing were still being worked out.
These officials said several government agencies were being consulted over the best approach to block the statute, which, barring any successful legal challenges, takes effect July 29. At least five lawsuits have already been filed in federal court, and civil rights groups have asked a federal judge to issue an injunction while the cases are heard.
A State Department spokesman, Philip J. Crowley, said Mrs. Clinton’s comments, made during a visit to Ecuador’s capital, Quito, were meant to answer deep qualms about the law in Mexico and other Latin American countries. “It is important to recognize that this has resonated significantly beyond our borders,” Mr. Crowley said.
Still, in focusing on Arizona, the Obama administration is making a politically risky calculation: the move could help repair America’s image south of the border but open the administration to charges that it is trampling state’s rights. And a legal battle could energize the right during an election year.
At home, polls show that a majority of Americans support the law, or at least the idea of states more rigorously enforcing immigration laws. But Latino groups and elected officials have denounced it as an affront to Hispanics. Several large demonstrations, for and against the law, have been held in Phoenix and other cities.
Legal action has been widely expected, given Mr. Obama’s repeated statements against it, as well as the concerns that Attorney General Eric H. Holder Jr. has voiced in interviews and news conferences.
In late May, Justice Department lawyers traveled to Phoenix to speak with lawyers from the offices of the state attorney general, Terry Goddard, and Gov. Jan Brewer about the possibility of litigation. Mr. Goddard, who is seeking the Democratic nomination for governor, and Ms. Brewer, a Republican who is running for re-election, both say a federal lawsuit is unwarranted.
In a side drama, Mr. Goddard on Friday took his office off the case, bowing to the wishes of Ms. Brewer, who had said his opposition to the law would make it difficult for him to defend it. Mr. Goddard said his decision had nothing to do with the Justice Department’s plans.
Mrs. Clinton’s disclosure — which came to light after her interview was posted by a political blog, therightscoop.com — quickly became fodder for political campaigns in Arizona. Republicans, led by Ms. Brewer, seized on the notion of a domestic policy decision’s being disclosed on foreign soil.
“This is no way to treat the people of Arizona,” the governor said in a statement. “To learn of this lawsuit through an Ecuadorean interview with the secretary of state is just outrageous. If our own government intends to sue our state to prevent illegal immigration enforcement, the least it can do is inform us before it informs the citizens of another nation.”
The federal government from time to time has successfully brought claims against laws it deemed discriminatory or infringing on voter rights. It also has a history of suing states on issues related to prison conditions and school desegregation, said Erwin Chemerinsky, a constitutional scholar at the law school at the University of California, Irvine.
While Arizona’s law has drawn opposition from those who worry that Hispanic-Americans and legal residents will be mistaken for illegal immigrants, legal scholars say the case will more likely to turn on whether it intrudes on federal immigration authority.
In 2007, the Bush administration successfully sued Illinois after it passed a law barring employers from using a federal electronic system to verify the immigration status of would-be employees.
Racial profiling claims may be difficult to prove. The United States Supreme Court, in a 1975 case, ruled that immigration officers can include racial or ethnic identity among factors in deciding whether to check someone’s right to be in the country.
Still, the federal government could argue that the law, in effect, gives one state more regulatory power in immigration than another and raises thorny diplomatic problems abroad, said Jack Chin, a University of Arizona law professor.
The theory of this law, he said, is that Arizona is “borrowing federal regulatory authority to help carry out federal policy.” But he said, “If the federal government comes in and says you are interfering, I think that is going to be a problem for the state.”
Though not a legal issue, administration officials said the law, passed in April, has tarnished America’s image in Latin America. They point to a new poll conducted by the Pew Research Center, which found that only 44 percent of Mexicans viewed the United States favorably after Arizona enacted the law, compared with 62 percent before that.
On a four-day trip last week to Colombia, Ecuador and Peru, Mrs. Clinton was asked about the law at every stop. When she sat down with reporters from two local TV channels in Quito last week, it was the subject of the first question from both. One reporter suggested that the law might encourage violence against those suspected of being illegal immigrants.
Mrs. Clinton said that the administration was committed to changing immigration policy and that Mr. Obama had spoken out because he felt the law infringed on federal authority. Speaking to the NTN channel, she said flatly that he would challenge it.
Administration officials traveling with Mrs. Clinton did not immediately recognize she had made news. The process was slowed further because the State Department did not publish a transcript of her remarks until June 11, two days later, because of technical glitches.
While the crossed wires left people at the Justice Department shaking their heads, Mrs. Clinton’s aides were unapologetic. The State Department had urged the Justice Department to announce the suit earlier this week, so Mrs. Clinton would not steal her colleagues’ thunder, one official said.
And, as Mr. Crowley, the spokesman, pointed out, “There is clearly an international aspect to this.”
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