PHOENIX — The federal lawsuit against Arizona's tough new immigration law focuses heavily on a question that has been in the spotlight repeatedly the past decade and dates to the Founding Fathers: The right of the government to keep states from enacting laws that usurp federal authority.
The lawsuit filed in Phoenix federal court on Tuesday sidestepped concerns about the potential for racial profiling and civil rights violations most often raised by immigration advocates. Experts said those are weaker arguments that don't belong in a legal challenge brought by the White House to get the measure struck down.
Instead, the suit lays out why the government believes that immigration laws passed by Congress and enforced by a range of federal agencies must take precedence to any passed by a state Legislature. [See which industries donate the most to your member of Congress.]
The Arizona law requires officers, while enforcing other laws, to question a person's immigration status if there's a reasonable suspicion that they are here illegally, such as speaking poor English, traveling in an overcrowded vehicle or hanging out in an area where illegal immigrants typically congregate.
The law also makes it a state crime for legal immigrants to not carry their immigration documents.
Backers of the law say the crackdown is a necessary tool to keep illegal immigrants out of Arizona and combat problems such as drug trafficking, murders and violent kidnappings that have become so common in a state that is home to an estimated 460,000 undocumented residents.
The federal government will ask a judge to grant an injunction to block the law from taking effect on July 29.
The arguments will focus on a core constitutional concern — balancing power between the states and the federal government. More specifically, the issue centers on the long-running "pre-emption" legal argument that says federal law trumps state law.
"The nation's immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests," the lawsuit says.
The lawsuit goes on to say that a "state may not establish its own immigration policy or enforce state laws in a manner that interferes with the federal immigration laws. The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country."
Backers of the law say that Arizona will have some strong arguments in its favor in fighting the lawsuit.
Kris Kobach, the University of Missouri-Kansas City law professor who helped draft the Arizona law, has said the state law is only prohibiting conduct already illegal under federal law. And Harvard Law School professor Gerald Neuman believes Arizona could make a compelling legal argument that it has overlapping authority to protect its residents.
But courts have ruled that under the Supremacy Clause of the Constitution, any state law that conflicts with a federal law is pre-empted. Federal law, the framers said, "shall be the supreme law of the land."
The pre-emption tactic has been successfully used by the federal government on several occasions over the years, including by President George W. Bush's administration to limit product liability lawsuits. The government also used it to overturn bans on military recruiters passed by liberal California towns.
Federal courts have invoked the Supremacy Clause on immigration issues as well. For example, a federal judge in 2008 struck down a Dallas suburb's ordinance that banned apartment rentals to illegal immigrants, saying the U.S. government has the ultimate authority to enforce immigration laws.
Within months of taking office, the Obama White House directed department heads to undertake pre-emption of state law only with full consideration of the legitimate prerogatives of the states. The 2009 directive was aimed at reversing Bush administration policy which had aggressively employed pre-emption in an effort to undermine a wide range of state health, safety and environmental laws.