Cross-posted at Forbes‘ On the Docket.
Yesterday the Department of Justice filed its long anticipated lawsuit seeking to block enforcement of Arizona’s recently passed immigration law, S.B. 1070. Despite the Administration’s heated rhetoric over the past several weeks, including its stunning apology to China for Arizona’s human rights record, the complaint contains not a single claim that the Arizona law violates anyone’s civil rights, whether resulting from racial profiling or otherwise.
Rather, as the DOJ’s brief in support of its preliminary injunction motion makes clear, the lawsuit rests almost exclusively on the government’s claim that Arizona’s new law runs afoul of the Supremacy Clause and is therefore preempted by federal law. In a nutshell, the DOJ’s position is that Arizonans, acting through their elected officials, are improperly interfering with the federal government’s authority (and ability) to carry out immigration policy. According to a DOJ press release, a patchwork of state and local policies would seriously disrupt federal immigration enforcement. Having enacted its own immigration policy to compete with federal immigration law, Arizona supposedly “crossed a constitutional line.”
Of course, the Supreme Court has long recognized a strong presumption against federal preemption, which requires courts not to find state laws preempted unless that was the clear and manifest purpose of Congress. Leaving aside the fact that Arizona’s S.B. 1070 simply mirrors Congress’s longstanding immigration law and is designed solely to complement, rather than undermine, federal immigration policy, the view of preemption the government is now peddling in the Arizona litigation is radically different from the positions it has only recently announced elsewhere.
Just this past April, the Solicitor General submitted a vigorous anti-preemption amicus brief in the Supreme Court in Williamson v. Mazda Motor of America. The case requires the high court to determine whether the motor vehicle safety standards established by the federal government effectively preempt a products liability claim under state tort law. The Court of Appeals of California would not let the case proceed, ruling that the plaintiffs’ claims were preempted under federal law. The government’s brief argued strongly against preemption, urging the Supreme Court to grant discretionary review in order to overturn the finding of preemption. Among other things, the government argued that the mere fact that auto manufacturers must comply with federal law when installing seat belts does not preempt a state law tort action. Simply put, the Solicitor General “did not agree” with the “broader theory of implied preemption,” that some lower courts have advanced. The government’s anti-preemption brief has been described as “blistering” by some commentators.
But that’s not all. On May 20, 2009, President Obama issued a sweeping Presidential Memorandum on Preemption, which was delivered to all executive department and agency heads. Seeking to curtail the broad invocation of federal preemption, the memo expresses alarm that “executive departments and agencies have sometimes announced that their regulations preempt State law, including state common law, without explicit preemption by the Congress.” Most relevant to the Arizona litigation, the memo explicitly advances the view that “State law and national law often operate concurrently to provide independent safeguards for the public.” The memo goes on to say that preemption of state law “should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption.” Recognizing that the states serve as “laboratories of democracy” and often are the most aggressive defenders of public health and safety, President Obama advocated a presumption against preemption unless a contrary intention is expressly contained in the relevant federal statute.
And the DOJ’s view of the role of states in combating illegal immigration is further belied by the Obama Administration’s own policies, which clearly contemplate (and encourage) state and local governments to play a vital role in addressing public safety concerns related to border security and immigration. In 2009, the Obama Administration spent $60 million on Operation Stonegarden, which provided grants to state, local, and tribal law enforcement in 13 states to “enhance cooperation and coordination between Federal, State, local, and tribal law enforcement agencies in a joint mission to secure the United States border.” Indeed, Secretary Napolitano proclaimed, “I am proud to announce that the 2009 funding provides additional flexibility to ensure that our first responders are equipped with the resources they need to confront the complex and dynamic challenges that exist along our borders.” The Administration also solicits state and local governments to participate in “Secure Communities,” a federal program designed to help identify and remove criminal aliens. Similarly, Homeland Security funds Border Enforcement Security Teams (BEST), which include state and local law enforcement. And the DOJ itself participates in Basic Immigration Enforcement Training (BIET), a program designed to train state and local law enforcement on immigration enforcement.
Unsurprisingly, neither the Solicitor General’s anti-preemption amicus brief, nor President Obama’s anti-preemption memorandum, nor the federal government’s myriad programs designed to urge local and state officials to help enforce federal immigration policy were mentioned by the DOJ’s filings in court yesterday. How can we best explain the Administration’s recent lawsuit against Arizona in light of this evident mountain of contradiction? That’s easy. It’s politics as usual.