Immigration expert: Suit against Arizona Immigration Bill will succeed

 

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Carol Forsloff - An immigration lawyer has taken a look at the lawsuit filed July 6 by the U.S. Justice Department against Arizona’s new immigration statute and believes it will succeed, at least at the appellate stage.




The suit has to go through several rounds, the first of which will take place before an Arizona federal district judge, which Stephen Legomsky, JD, DPHil, immigration policy expert and professor of law at Washington University in St. Louis, calls a "wild card."

“It’s very hard to predict what the district court is going to do,” says Legomsky.  "Its decision will be made by just one randomly selected judge, and that judge will be an Arizona resident who might come under intense personal pressure to defend his or her state’s law against federal intervention.’’

According to Legomsky it is likely that whoever loses in this first round is almost certain to appeal to the 9th Circuit Court of Appeals.  That court covers most of the western United States where a three-judge panel from a broader region will decide the case..

“They will be more likely than a district judge sitting in Arizona to invalidate at least portions of the law,” Legomsky believes. “Then, of course, there is always the possibility of a definitive ruling by the Supreme Court.”

Out of all portions of the law most likely to stand would be the law enforcement interrogation Legomsky says.  The statute contains a mandate for police officers to investigate the statuses of anyone they lawfully stop whenever they have a “reasonable suspicion” that the person is unlawfully present. But the worry of the law's opponents it is does not say what will make a suspicion reasonable, which is the reason for people's fear that racial profiling will therefore become more widespread.

Other controversial provisions, however, make certain immigration-related conduct a state criminal offense. 

Legomsky maintains, however,  that at least the latter provisions will be struck down as illegal interferences with the exclusive federal power to set the nation’s immigration policies.

For example, the Arizona law makes it a state crime for an undocumented immigrant to be present in the state.

“While Congress has indeed made illegal entry a federal criminal offense. It has consciously chosen not to criminalize overstaying a visa; for visa overstayers, Congress has decided that deportation is a sufficient sanction,’’ Legomsky observes. "Thus, Arizona’s law is directly at odds with the federal immigration laws. Further, even for individuals who entered illegally, Congress had to balance a range of factors before settling on the proper level of punishment.”

“By increasing the penalty, Arizona has substituted its judgment for that of Congress. And for the past 100 years, the Supreme Court has consistently held that the regulation of immigration is exclusively a federal responsibility. Whether you feel that the existing penalties are too harsh, too weak, or just right, we can’t have 50 states and hundreds of cities and towns each passing their own immigration laws.”

Even so, Legomsky says it is likely other states will “go ahead and pass copycat immigration legislation before this case is ultimately resolved.”

Those who support the Arizona law assert the statute is necessary because the federal government fails to adequately secure U.S. borders. But Legomsky tells us the Obama administration has committed massive new resources to border fences, border patrol personnel, and new technologies.

“No law is capable of 100 percent enforcement,” Legomsky says. “It’s easy to criticize the federal government for failing to stem illegal immigration, but the real question is how much in the way of taxpayer resources do supporters want the federal government to spend on immigration enforcement?”

Legomsky has a unique background to discuss the immigration law of Arizona as he has chaired several nationwide committees, has testified before the U.S. Congress and has advised both Democratic and Republican administrations on immigration and refugee matters. His immigration law course book has been required reading at 172 law schools.