After Secretary of State Hillary Clinton accidentally let it slip during an interview that the Department of Justice would bring a lawsuit against Arizona challenging its recently passed immigration law, state leaders say they are confident that SB 1070 will be upheld.
“We will prevail,” said Russell Pearce, the state senator who sponsored the legislation. “I vetted this bill very, very carefully, anticipating a lawsuit, and making sure we wrote it right.”
Although the details of the Justice Department’s lawsuit have not yet been announced, former Maricopa County Attorney Andrew Thomas said any challenge to SB 1070 would most likely center around the Supremacy Clause of the Constitution.
“Those critics rely on the argument that Congress has preempted the states from regulating illegal immigration,” said Thomas, who is running for attorney general. “Unfortunately for them, that’s not what the federal courts have ruled.”
Thomas said that proponents of previous anti-illegal immigration bills have successfully used the precedent set by the 1976 U.S. Supreme Court ruling in De Canas v. Bica as a defense against legal challenges.
“We have had a number of challenges to our human smuggling law, our employer sanction law, our voter ID law, passed by the [Arizona] voters in 2004. They’ve all been upheld,” Thomas said. “The Justice Department will be going against this steady stream of cases that we have won in both federal and state court — unless they have come up with a brilliant new theory that basically invalidates the Supreme Court and other case law we’ve relied on.”
Thomas said a lawsuit could target provisions specific to SB 1070, but he noted that the majority of the bill would likely remain intact even if such a suit succeeded.
“It should just cut down that portion,” Thomas said. “If there were an ancillary part of the law that they had trouble with, they could strike that down and leave the rest alone.”
For Pearce, it is clear that any federal lawsuit would rest primarily on ideological — not legal — ground.
“The grounds basically are, ‘I don’t like the bill,’” Pearce said. “They have an agenda. That agenda is to not allow enforcement of these laws that have been on the books for 50 years.”
Arizona Gov. Jan Brewer’s office has already mounted a defense of the law.
“Our attorney general has no intention of enforcing our laws on the illegal alien issue,” Pearce said. “Knowing his opposition to 1070, we put it in the bill that the governor would lead this effort.”
Pearce said that several legal groups have offered to help defend the law pro bono and that over $45,000 in private donations has been raised to help defray defense costs.
Thomas said that “no one should underestimate the minds of the U.S. Justice Department in coming against Arizona,” but that he is “confident that 1070 will be upheld if we have proper legal representation and the will to go into court and fight for it.”
Brewer did not know of the Justice Department”s imminent lawsuit until she learned about it like most observers — through the press coverage of Clinton’s interview.
“This is no way to treat the people of Arizona,” Brewer wrote 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.”
Arizona Attorney General Terry Goddard’s office declined to comment. Gov. Jan Brewer’s office could not be reached for comment by press time.