The tests will come soon enough. Civil rights organizations are already planning their suits, said Lucas Guttentag, director of the immigrants’ rights project of the American Civil Liberties Union. The law, Mr. Guttentag said, “will increase racial profiling and discrimination against Latinos and anyone who might appear to be an immigrant.”Even if the new law is constitutionally acceptable as written, the challenge will be on whether it will be constitutional as applied. On this latter point, I can see real problems with it.
President Obama criticized Arizona’s bill last week before it was signed, calling for a comprehensive immigration overhaul as an alternative to such “misguided” efforts. He also asked the Department of Justice to “examine the civil rights and other implications of this legislation.”
On Tuesday, Attorney General Eric H. Holder Jr. said the department was considering several options, including a federal court challenge.
The major issue in those challenges will be whether federal law should trump state action.
“The closer the law comes to the traditional federal role,” said Juliet P. Stumpf, an associate professor of law at Lewis & Clark Law School, “the more likely it is that the state law will be considered to be trespassing on the federal government’s domain.”
The new law, Professor Stumpf added, “sits right on that thin line of pure state criminal law and federally controlled immigration law.”
The courts have rebuffed state efforts through pre-emption in the past. Californians passed a voter initiative in 1994 that denied social benefits to illegal immigrants; a federal district court judge struck down the law in 1997 and the state later dropped its appeal.
Arizona has already won one challenge to a different immigration bill: the United States Court of Appeals for the Ninth Circuit has upheld a 2007 law that penalizes businesses that knowingly hire illegal immigrants. Federal law is not settled, however, and a similar law in Hazleton, Pa., was struck down by a federal judge.
Meanwhile, there are some serious questions that ought to be raised about the background of Kris Kobach, who was quoted in the New York Times article. Apparently the Times didn't do a thorough background check on Kobach and his ties to white supremacist groups and nativists via a group he represents, FAIR, which raises questions about his intentions and the true motivations for the Arizona bill.