Justice Brennan v. President Obama

Now let me get this straight.  (1) The federal government abdicates its responsibility with respect to immigration enforcement. (2) Arizona enacts a law narrowly requiring state enforcement of federal immigration law. (3) The federal government sues Arizona for enacting that law?!

Let me be clear: I’m in the George Bush-John McCain-Barack Obama camp favoring comprehensive immigration reform that both strengthens border security and creates a viable route to citizenship without completely trampling on the righteous and often tortured efforts of millions of legal residents to gain legal citizenship.  In other words, it shouldn’t be easier to be an illegal immigrant and gain citizenship than it is to be a legal immigrant and gain citizenship.

But this DOJ lawsuit — now coupled with Eric Holder’s bizarre announcement that DOJ might launch a second lawsuit if the Arizona law results in “racial profiling” — seems so profoundly misdirected that one has to ask what could possibly be motivating President Obama and Attorney General Eric Holder?  Even if the federal government’s legal position was strong — and I don’t believe it is — there were already several lawsuits challenging the law.  Why add the Department of Justice to the legal battle when it is precisely the abject failure of the federal government that gave rise to the Arizona law in the first place?

Moreover, given the majority of American support for the Arizona law, and the majority of American opposition to the DOJ lawsuit, the only possible political calculation here is the Hispanic vote, which Obama/Holder presumably believe will tilt even more Democratic with their muscular pummeling of the State of Arizona.  That’s a pretty cynical basis for a misdirected lawsuit.

The federal government is saying that no state can enact a law having anything to do with immigration because the federal government is supreme and exclusive with respect to immigration law, whether or not it chooses to enforce immigration laws.

This is a fascinating lawsuit.  We will discover as a nation whether the federal government can both refuse to enforce duly enacted federal laws and forbid states to enforce the same laws.  We will learn whether it is possible for Congress to enact laws, the White House to ignore them, and the Justice Department to forbid states to not ignore them.  Much hangs in the balance.

If an already heavily-politicized Justice Department can both pick laws not to enforce and pick states to stop from trying to enforce those same federal laws, then the Executive Branch truly becomes the supreme branch — no longer subject to the delicate regime of checks and balances contemplated by the Founders.

DOJ’s lawsuit is predicated on the doctrine of preemption: federal law trumps, which is true.  There are two types of preemption: conflict preemption and field preemption.  Conflict preemption forbids state or local laws that conflict with federal law.  The Arizona law is clearly not that kind of law, as it essentially codifies some federal immigration law into Arizona law.  Field preemption forbids any state or local law in a particular field because the federal government has declared in unmistakable terms that only the federal government may legislate in the field at issue.  The DOJ lawsuit seeks field preemption of the Arizona law.