Federal vs state immigration – who has the final say?

WASHINGTON, DC – The US Department of Justice has requested a preliminary injunction to delay enactment of SB 1070, passed by the Arizona legislature, filing a lawsuit against the state in federal court today. The law would make the failure to carry immigration documents a crime and give the police broad power to detain anyone suspected of being in the country illegally.

The Department argues that the law’s operation will cause “irreparable harm,” that federal law overrides state law, and that the enforcement of immigration law is at the federal level.

“The federal government is taking an important step to reassert its authority over immigration policy in the United States,” said Benjamin Johnson, executive director of the American Immigration Council. “While a legal challenge by the Department of Justice won’t resolve the public’s frustration with our broken immigration system, it will seek to define and protect the federal government’s constitutional authority to manage immigration.”

Although states have always played a role in federal immigration enforcement, over the last 10 years, more and more states have chosen to impose their local policies, priorities, and politics on our national immigration system. America can only have one immigration system, and the federal government must make clear where states’ authority begins and where it ends. The federal government must assert its authority to establish a uniform immigration policy that it can be held accountable for. In the current environment, it is unclear who is responsible for setting immigration enforcement priorities and who is responsible for their success or failure?

While the American Immigration Council applauds the administration’s decision to challenge the constitutionality of the Arizona law, it urges it to also look inward and correct other policies and programs that confuse the relationship between federal and state authority to enforce immigration laws. For example, the Department of Justice should rescind an Office of Legal Counsel memo issued in 2002, which opened the door for greater state action by reaching the politically-motivated decision that states had inherent authority to enforce immigration laws. In addition, the Department of Homeland Security should rescind the 287(g) agreement in Maricopa County, Arizona, where it has become clear that the agreement is being abused.

At the end of the day, a lawsuit alone will not end the vacuum created by the lack of workable immigration laws. While the Department of Justice takes up the legal challenge, the Obama administration and Congress must put the immigration issue squarely back where it belongs – in the halls of congress and on the desk of the President of the United States.