The Justice Department will file suit against Arizona on the basis that the state's recent anti-immigrant legislation intrudes on the role of the federal government in immigration enforcement, according to anonymous sources contacted by the Washington Post.
The lawsuit, which could be filed as early as Tuesday, will invoke the legal doctrine of "preemption," which is grounded in the Constitution's supremacy clause and says that federal law overrides state statutes.
By ordering police to question anyone they suspect of being an undocumented immigrant, the Arizona law puts police in charge of enforcement usually carried out by federal agents. Since it was signed into law in April by Gov. Jan Brewer, the bill has drawn condemnation from President Obama, Attorney General Eric H. Holder Jr. and numerous civil rights and immigrant rights groups. It has also prompted at least five other lawsuits directed at the state of Arizona.
Secretary of State Hillary Clinton first revealed the Obama administration's plan to sue Arizona during an interview on Ecuadorian TV.
According to anonymous sources quoted by the Washington Post, department lawyers have been preparing their case. The filing is expected to include declarations from other U.S. agencies noting that the Arizona law and the significant number of undocumented immigrants it is expected to detain would place a significant burden on their ability to enforce immigration laws nationwide.
Linda Brown, executive director of the progressive Arizona Advocacy Network, said she was very happy to hear about the decision of the Justice Department. "The courts need to weigh in on this issue," said Brown. "Do we truly have a federal government that makes federal laws, or do we not? And that is the key question in this case."
Brown said she hoped the notion that "states can choose to act in whatever ways they wish to and redefine what it means to be the United States of America" would be overturned.
The preemption doctrine has a basis in earlier Supreme Court decisions and legal experts expect the federal argument to persuade a judge that the law is unconstitutional.
Peter Schey, executive director of the California-based Center for Human Rights and Constitutional Law, said "that from the standpoint of promoting and protecting human rights, the Obama administrations participation in the litigation is a welcome move." However, Schey noted, while the participation of the federal government may make it more likely for the court to find that the law is preemptive, it is not a silver bullet.
Both Schey and Brown said there were other things the Obama administration could do if it wanted to nullify the effects of SB1070 or institutionalized racial profiling. For example, the administration could refuse to process undocumented immigrants picked up in Arizona who had not committed a minor crime. Schey also said Congress could easily pass a law attached to a budget bill, which could not be filibustered, saying it was preempted by federal law, which "would end the matter."
Arizona's law is scheduled to take effect on July 29th. Activists around the country have called for a National Day of Non-Compliance ion the 29th in protest.