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Memo Complicates Challenge To AZ Law

From Fox News:

Andres Mesa (R) of Placentia, California, protests Arizona’s new immigration law.

DOJ Lawyers Draft Challenge to AZ Law

By Mike Levine On May 25, 2010

A team of Justice Department attorneys reviewing the new immigration law in Arizona has recommended that the U.S. government challenge the state law in federal court, but the recommendation faces an uncertain future and tough scrutiny from others in the Justice Department, sources with knowledge of the process tell Fox News.

Staff attorneys within the Justice Department recently sent higher-ups the recommendation. At the same time, the Justice Department’s Civil Division, which oversees the majority of immigration enforcement issues for the department, has drafted a "civil complaint" that would be filed in federal court in Arizona, sources said.

The draft complaint challenges the Arizona law as unconstitutional, saying it is illegal because it impedes federal law, according to the sources, who would not offer any more details about the draft complaint or the arguments made in it…

Exactly how does enforcing a federal law "impede" it? Can the DOJ name any other laws that are being impeded by being enforced?

Two sources with knowledge of the review said the draft complaint, which is now receiving input from the attorney general’s office and other Justice Department offices, is not an indication that the Justice Department will ultimately file a lawsuit

No, and the sun might not come up tomorrow, too.

If the Justice Department’s Civil Division decides against filing the complaint, others within the Justice Department could step in. In fact, the attorney general’s office, the deputy attorney general’s office and the Civil Rights Division are all reviewing options.

Holder told lawmakers that the Civil Rights Division will be monitoring the application of the Arizona law, set to go into effect in late July, and could take subsequent action…

He said such monitoring would occur in any case

If only Mr. Holder would monitor Islamic terrorists the way he will monitor Arizona’s law enforcement officers. But he has his priorities.

Others have raised concerns that a 2002 memo from the Office of Legal Counsel could complicate federal challenges to the Arizona law, especially preemption-related challenges. The 2002 memo said state and local police can arrest illegall [sic] immigrants for violating federal law.

But after reviewing the Arizona law and options for challenging it, at least some Justice Department lawyers have concluded that the 2002 memo would not pose a problem because, in their view, it is narrow enough in scope to permit a challenge

That is to say, the Justice Department lawyers have decided to ignore the memo. After all, it’s "just words."

For the record, here is more on that 2002 ‘Memo,’ from the Washington Post:

Memo from 2002 could complicate challenge of Arizona immigration law

By Jerry Markon
Tuesday, May 18, 2010; A17

In the legal battle over Arizona’s new immigration law, an ironic subtext has emerged: whether a Bush-era legal opinion complicates a potential Obama administration lawsuit against Arizona.

The document, written in 2002 by the Justice Department’s Office of Legal Counsel, concluded that state police officers have "inherent power" to arrest undocumented immigrants for violating federal law. It was issued by Jay S. Bybee, who also helped write controversial memos from the same era that sanctioned harsh interrogation of terrorism suspects.

The Washington Post writers are so subtle, aren’t they?

The author of the Arizona law — which has drawn strong opposition from top Obama administration officials — has cited the authority granted in the 2002 memo as a basis for the legislation. The Obama administration has not withdrawn the memo, and some backers of the Arizona law said Monday that because it remains in place, a Justice Department lawsuit against Arizona would be awkward at best.

"The Justice Department’s official position as of now is that local law enforcement has the inherent authority to enforce federal immigration law," said Robert Driscoll, a former Justice Department Civil Rights Division official in the George W. Bush administration who represents an Arizona sheriff known for aggressive immigration enforcement. "How can you blame someone for exercising authority that the department says they have?" …

The 2002 opinion, known as the "inherent authority" memo, reversed a 1996 Office of Legal Counsel opinion from the Clinton administration. "This Office’s 1996 advice that federal law precludes state police from arresting aliens on the basis of civil deportability was mistaken," says the 2002 memo, which was released publicly in redacted form in 2005 after civil rights groups sued to obtain it.

Office of Legal Counsel documents do not have the force of law but carry great weight within the executive branch and are considered to be the Justice Department’s official position on a legal or constitutional issue.

Cecillia Wang, managing attorney of the ACLU Immigrants’ Rights Project — which filed Monday’s lawsuit in federal court in Phoenix along with the NAACP, the National Immigration Law Center and other groups — said the 2002 memo would not present an obstacle to a Justice Department lawsuit. She said the power that the Arizona law gives to police "goes far beyond" the basic arrest authority cited in the memo.

But Wang renewed the ACLU’s call for the Obama Justice Department to withdraw the 2002 memo, which she called legally incorrect. "The fact that this memo is lurking out there gives cover and comfort to people in Arizona and other states who want to pass these overbroad and extraordinary anti-immigration measures," she said.

Neither this memo nor the Arizona bill has anything to do with immigration. But when has the truth ever stopped the ACLU?

The 2002 "inherent authority" memo should have never been necessary in the first place. Of course local authorities have an ‘inherent duty’ to enforce federal law.

Just take the matter of illegal immigrations. How on earth can the federal authorities be expected to police the country? There are only about 15,000 Immigration and Customs Enforcement (ICE) employees in toto.

Besides, how could ICE round up illegal aliens, since they don’t perform traffic stops or have any other contact with the populace. They would have to ‘profile,’ wouldn’t they? Of course the local police would have to play a role.

Does Mr. Holder and the ACLU object to local police enforcing ‘civil rights’ laws? Can they give us some examples of when they have?

This article was posted by Steve on Wednesday, May 26th, 2010. Comments are currently closed.

6 Responses to “Memo Complicates Challenge To AZ Law”

  1. proreason says:

    Frivolous Challenges to state laws is another impeachable offense.

    • TwilightZoned says:

      I’m sure in Barry’s eyes this is not frivolous. The boy king may even have plans to challenge the federal law. Nothing else happening in the world is more important than securing a voting base for 2010.

    • proreason says:

      You’re right TZ that in the Moron’s eyes it is deadly serious. Everything is deadly serious to the man who is running the world.

      But from a legal perspective, it’s frivolous:
      – it merely authorizes local authorities to invoke federal law
      – the local authorities have to hand the illegals over to the feds
      – it specifically makes racial profiling illegal
      – the police can only inquire about legal status if another action is performed that requires police action
      – the Arizona border is the main drug gateway into the states.
      – 70% of the state supports the law
      – it was passed legally
      – we have a federal system. The feds can’t overturn local laws unless they violate the Constitution
      – there is nothing even remotely unconstitutional in this law…provided, of course, the federal law is constitutional, and nobody is discussing challenging that
      – there is an additional legal opinion written in 2002 and never challenged by the Moron’s DOJ that authorizes local officicials to assist with the enforcement of federal law for illegals
      – everybody knows there will be only a half-hearted challenge by the most politicized DOJ of all time, and that the challenge will simply disappear when it is politically expedient

      So if that isn’t the mark of frivolity….nothing is.

      It’s the equivalent of sueing McDonalds because it’s hamburgers contain animal fat.

  2. Right of the People says:

    “Besides, how could ICE round up illegal aliens, since they don’t perform traffic stops or have any other contact with the populace. They would have to ‘profile,’ wouldn’t they? Of course the local police would have to play a role.”

    The sad fact is that ICE cares more about drugs and kiddie porn which they believe to be more “glamorous” than their actual job of rounding up wets who have managed to slip by CBP. There have been many cases where the local ICE office has been called by local law enforcement when the catch an illegal and the can’t be bothered with coming over to pick them up.

    The system is broke and its going to take a lot of fixing.

    Of course the clown in the Oval Office isn’t helping. Not hardly.

  3. Mithrandir says:

    Is that a Nazi sign I see out there?

    Where are the liberals and Chris Matthews stating, “I have never in my life seen such hate.” –like they said at the anti-Obama rallies.

    Sometimes swastikas Ok, sometimes not. That is the moral relativism of the liberal mind.

    These days they criticize Rand Paul while DEMOCRAT Robert Byrd, is a former KKK recruiter who opposed the Civil Rights Act…….and nothing but crickets from the liberals.

  4. Rusty Shackleford says:

    California protestors would do well to poop in their own woods. Perhaps AFTER they read the California laws: http://www.criminalandimmigrationlaw.com/public/Expungement_TOC.pdf

    Can’t find the law as written, thanks Google, but here’s a discussion board statement that sums it up. CA passed a similar law in 2001: http://www.alldeaf.com/war-political-news/77740-california-passes-azs-immigration-law.html

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