FAIR Legislative Update July 19, 2010
Vitter and DeMint Attempt to Block Obama’s Lawsuit against Arizona
Last week, Senators David Vitter (R-LA) and Jim DeMint (R-SC) introduced an amendment to the small business bill (H.R.5297) that would deny the federal government funding to sue Arizona over its recently enacted immigration enforcement law, SB 1070. The DeMint-Vitter amendment (#4464) succinctly states: “No funds made available in any provision of law may be used to participate in any lawsuit that seeks to invalidate those provisions of the Arizona Revised Statutes amended by Arizona Senate Bill 1070….” The small business bill is currently pending in the Senate and is set to be debated this week. (Politico, July 16, 2010).
In a statement released alongside the amendment, Senator DeMint remarked, “States like Arizona shouldn’t be prosecuted for protecting their citizens when the federal government fails to do so. Instead of suing states for doing his job, the President should get serious and stop holding border security hostage to pass amnesty and score points with his liberal base.” (DeMint/Vitter Press Release, July 14, 2010). Senator Vitter added, “The Obama administration should not use taxpayers’ money to pay for these lawsuits that the American people overwhelmingly oppose.” Id. A Fox News poll released last Thursday shows that most American voters oppose the lawsuit by 59-29 percent. (Fox News, July 15, 2010).
Last Wednesday, the attorneys general of eight states and one U.S. territory filed a “friend of the court” brief in the federal lawsuit (U.S.A. v. Arizona) to support Arizona’s new immigration enforcement law, SB 1070. (Cox Press Release, July 14, 2010). Led by Michigan Attorney General Michael Cox, other signatories included the attorneys general from Florida, Alabama, Nebraska, Pennsylvania, South Carolina, South Dakota, Texas, Virginia, and the Northern Mariana Islands. Because the federal court has limited the length of such amicus briefs, the states’ argument goes straight to the heart of the federal complaint: preemption. (Id.)
In their brief, the states forcefully refute the Department of Justice’s argument that SB 1070 is preempted under the United States Constitution. First, they reject DOJ’s argument that SB 1070 constitutes an impermissible “regulation of immigration.” Case law, they argue, has defined a “regulation of immigration” as defining who should or should not be admitted into the country and the conditions under which a legal entrant may remain. SB 1070 does not do either. Moreover, the states point out that federal courts have long held that state law enforcement officers have inherent authority to arrest for violations of federal law as long as the arrest is authorized by state law. (Amicus Brief)
Second, the states reject DOJ’s argument that SB 1070 conflicts with federal laws such that it “stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.” SB 1070, the states argue, is fully consistent with Congress’s intent of apprehending illegal aliens even if it does not facilitate the Executive’s wish to selectively abandon the enforcement of immigration laws. Moreover, the states argue, SB 1070 does not interfere with the Executive’s discretion in how it treats aliens as DOJ claims because the federal government still retains that discretion once Arizona law enforcement officers turn over an illegal alien to federal authorities. (Id.)
In a statement released with the brief, Michigan Attorney Michael Cox said, “Arizona, Michigan and every other state have the authority to enforce immigration laws, and it is appalling to see President Obama use taxpayer dollars to stop a state’s efforts to protect its own borders.” (Cox Press Release, July 14, 2010). Others who joined the brief sounded a similar note. Virginia Attorney General Ken Cucinelli remarked, “[F]ederal law expressly allows states to arrest people who are not legally present in the United States. Arizona’s law doesn’t change any of this. That’s why we are stunned that the government has sued Arizona.” (Cucinelli Press Release, July 14, 2010). South Dakota Attorney General Marty Jackley said South Dakota joined the amicus brief because federal authorities aren’t doing enough to enforce current immigration laws. “We felt it was right for the state of South Dakota because this is really a public safety issue,” said Jackley. (KSFY.com, July 15, 2010)
Arizona Governor Jan Brewer thanked Cox and the other attorneys general for supporting her state: “The United States was founded as a nation of laws and not of men, and I am deeply grateful for the national outpouring of support for the rights of states and the rule of law.” (Politico, July 14, 2010).
Less than a week after suing Arizona to block its immigration law, SB 1070, critics are pressing the Obama administration to go after “sanctuary cities” that deliberately look the other way when it comes to illegal immigration. The Department of Justice last week responded that it will not sue these cities, which prohibit local law enforcement from inquiring about an individual’s legal status or alerting immigration authorities when they encounter illegal immigrants, because it believes passive refusal to follow the law is not as egregious as Arizona’s passage of a law that “actively interferes” with federal law. Justice Department spokeswoman for Attorney General Eric Holder inexplicably argued, “There is a big difference between a state or locality saying they are not going to use their resources to enforce a federal law, as so-called sanctuary cities have done, and a state passing its own immigration policy that actively interferes with federal law.” (The Washington Times, July 14, 2010).
Representative Lamar Smith (R-TX), who authored the 1996 federal law which requires states and localities to cooperate with federal authorities on immigration enforcement, criticized the Justice Department’s politically convenient stance on sanctuary cities. “For the Justice Department to suggest that they won’t take action against those who passively violate the law …. is absurd,” said Rep. Smith. “Will they ignore individuals who fail to pay taxes? Will they ignore banking laws that require disclosure of transactions over $10,000? Of course not.” (The Washington Times, July 14, 2010).
Arizona Governor Jan Brewer has also noted the irony of the Obama administration’s refusal to sue localities to strike down their sanctuary policies, which she said could also be considered a “patchwork” of immigration laws across the country. (Brewer Statement, July 6, 2010). Senator David Vitter (R-LA) similarly noted, “This administration’s idea of immigration enforcement is to go after the states and local officials actually trying to enforce the laws on the books. They are demonizing those that look to protect our border and end illegal immigration while giving a wink and nod of approval to sanctuary cities that don’t enforce our laws.” (Vitter Press Release, July 15, 2010).
Senate Majority Leader Harry Reid (D-NV) came under fire last week for remarks he made to local television station suggesting that there were no illegal construction workers in the state of Nevada. During an interview with KLAS-TV on the topic of illegal immigration, a journalist informed Reid that the Pew Hispanic Center estimates 17 percent of construction workers in the U.S. are illegal aliens. Reid replied: “That may be some place, but it’s not here in Nevada.” (Politico, July 14, 2010)
Senator Reid’s remarks, apparently intended to minimize the impact illegal aliens have on Nevada’s labor, market drew immediate criticism, especially in light of the Nevada’s 14% unemployment rate. (Bureau of Labor Statistics, June 2010) Not only did the 2009 Pew Hispanic Report estimate that 17% of the nation’s construction workers are here illegally, it estimates that over 12% of Nevada’s entire labor force consists of illegal aliens, the largest percentage in the nation. (Pew Report, 2009)
A spokesman for Senator Reid immediately sought to clarify his comments, saying that Reid was merely disputing the reporter’s statistic and did not deny that there are any illegal workers in Nevada. But Republicans criticized Harry Reid’s comments as out of touch with ordinary Nevadans. Brian Walsh, a spokesperson for the National Republican Senatorial Committee, said “for those who live and work in the real world, and particularly for his constituents in Nevada, America’s broken borders and the lack of enforcement at construction sites is a very serious problem that is hurting American jobs.” (Politico, July 14, 2010)