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LAWSUIT UNDER CONSIDERATION WHILE LEGAL EXPERTS PREPARE TO ASSIST WITH ARIZONA’S DEFENSE
by Debra Mullins
(May 14, 2010) — U.S. Attorney General Eric Holder, told reporters on April 27, 2010 that the Department of Justice is considering taking legal action to block the implementation of Arizona’s SB1070, the new immigration enforcement law. Mr. Holder stated that he has assembled a group of lawyers from the Justice Department and Department of Homeland Security to weigh a possible federal lawsuit.
Mr. Obama has called the law “misguided” and has instructed attorneys to “examine the civil rights and other implications.” Mr. Holder called the law “unfortunate” and said that it might give rise to potential “abuse” by law enforcement officials.
During an interview with “Meet the Press” anchor David Gregory on May 9, 2010, Gregory asked Holder what specifically was wrong with the law and if the Department of Justice was close to filing a legal challenge.
Mr. Holder’s response was, in part:
Well, one of the things I think we have to acknowledge is that our immigration system is broken in many ways, and I think it requires a national solution. The concern I have is trying to do it state by state. I understand the frustration of people in Arizona, but the concern I have about the law that they have passed is that I think it has the possibility of leading to racial profiling and putting a wedge between law enforcement and a community that would, in fact, be profiled.
We are considering all of our options, and we – one of the things that we are thinking about is the possibility of filing a lawsuit. But we’re considering all of our options at this point. Whether or not it is something that we can file a lawsuit based on federal pre-emption grounds, whether we think that the law as enacted could violate federal civil rights statutes.
The complete transcript of the interview can be found here.
In an exchange between AG Holder and Representative Ted Poe (R-TX) during his testimony before the House Judiciary Committee on May 13, 2010, Rep. Poe questioned the AG about the Department of Justice’s plans to file a lawsuit.
Rep. Poe asked Mr. Holder if he had read the law, if he had an opinion regarding the law’s constitutionality, and if he saw a difference between the constitutionality of the statute and the constitutionality of its application.
Holder responded he has not read the law in its entirety so he has not formed an opinion, but he felt it potentially could be legally challenged both on its face and its application.
Rep. Poe followed up by asking Holder as to when he might have an opinion on the law’s constitutionality, to which Holder responded, “I think relatively soon. I think that we have to — there has been much discussion about this. The review is underway (sic). The Department of Justice along with the Department of Homeland Security is involved in this review.”
Rep Poe replied “– it’s hard for me to understand how you would have concerns about something being unconstitutional if you hadn’t even read the law.”
Holder responded, “Well, what I’ve said is that I’ve not made up my mind. I’ve only made — made the comments that I’ve made on the basis of things that I’ve been able to glean by reading newspaper accounts, obviously, television, talking to people who are on the review panel, on the review team looking at the law.”
A partial transcript of the exchange can be found here.
The American Center for Law & Justice (ACLJ), a Washington D.C.-based, nonprofit organization that focuses on constitutional law, is preparing to provide the State of Arizona legal research and briefs in support of new law. ACLJ’s position is that there is absolutely no provision in the Constitution that is being violated by the AZ immigration policy.
According to the ACLJ, the U.N. has also interjected itself into the debate. On May 11, 2010, six independent U.N. human rights experts issued a joint statement expressing their concern that the AZ law may violate international standards and subject Hispanics to discriminatory treatment.
Kris Kobach, a Republican candidate for MO Secretary of State, helped draft SB1070 and is also preparing to assist with the state of Arizona’s defense. Mr. Kobach currently teaches constitutional and immigration law at the University of Missouri – Kansas City School of Law.
Mr. Kobach recently gave an interview to National Law Journal’s Marcia Coyle. Ms. Coyle asked Kobach if he thought the Department of Justice would step in to challenge the Arizona law in which he replied:
It would be highly unusual for the Justice Department to do such a thing unless it was being motivated by political calculations. There have been numerous state statutes that represent state action in the area of illegal immigration and the Justice Department has never weighed in to stop states that are trying to reinforce federal law enforcement. I would imagine they would weigh their actions carefully, and they are not going to find any easy challenge in the text of the statute.
Ms. Coyle also asked Mr. Kobach if he expected a challenge and when. Kobach responded, “I expect a challenge will be filed and before the law goes into effect. I anticipate I probably will be providing some assistance to the Arizona Attorney General’s office.”
Mr. Kobach wrote a rebuttal on April 28, 2010 in response to the recent criticism of SB1070 by the Obama regime.
UPDATE, May 26, 2010: According to Fox News, the team of Department of Justice staff attorneys assigned the task of reviewing SB1070, Arizona’s illegal immigration enforcement law, has recommended the U.S. Government challenge Arizona in court.
The Department’s Civil Division, which oversees the majority of immigration enforcement issues for the department, has drafted a civil complaint that challenges the Arizona law as unconstitutional, on the premise it is illegal because it impedes federal law. If pursued, the complaint would be filed in federal court in Arizona.
Also, a coalition of approximately a dozen police chiefs from major U.S. cities are scheduled to meet with Attorney General Holder on May 26 to discuss their opposition to the new AZ immigration enforcement law. The group contends the new law could drive a wedge between the community and local law enforcement officials.
Phoenix Police Chief Jack Harris stated: This law is the culmination of a very broken immigration system. It doesn’t fix the immigration problem, it only diverts our scarce resources.
Pinal County Sheriff Paul Babeu and president of the Arizona Sheriffs’ Association said his law enforcement colleagues should be “preparing to implement the law” rather than meeting with Holder. We wouldn’t have to do this, if the federal government had done its job.