If U.S. Attorney General Eric Holder decides to challenge Arizona’s tough new immigration-enforcement law in court, it will be a rare and likely powerful test of a state law by the federal government.
Legal experts say the federal government typically sits back and watches as private groups challenge controversial state laws. When the government does wade into the fray, it usually is as a supporter of a case brought by a private party.
But in the case of Arizona’s law, which makes it a crime to be in the state illegally, Holder already has signaled that he is likely to file a challenge. It would be among just a handful of recent times, court watchers say, that the federal government has directly challenged a state law.
Erwin Chemerinsky, dean of the University of California-Irvine School of Law, said the Justice Department actively and successfully challenged state measures during the civil-rights era to overturn election laws in the South that were aimed at preventing African-American citizens from voting.
“There also have been instances of the federal government challenging state prisons for violating prisoners’ constitutional rights,” he said.
Three lawsuits have been filed to challenge the Arizona law, and more are expected. The law, which takes effect July 29, requires police to check documents of people they reasonably suspect to be undocumented. Critics say the law can lead to racial profiling, although Arizona Gov. Jan Brewer said the law-enforcement community will be trained to avoid that.
Last month, President Barack Obama called the law misguided and said he had ordered the Justice Department to review it for possible civil-rights violations.
“It’s particularly strange to see the federal government step in when so many different groups are moving to challenge the law,” said Jonathan Turley, a constitutional-law expert at George Washington University Law School in Washington, D.C. “I think part of the reason is political. The White House clearly wants to signal its opposition to the law.”
Still, when the federal government does intervene, it is more common for it to let a private party take the lead and to support that party by filing a friend-of-the-court brief, legal experts say.
That was the case in 1940, when the Justice Department supported private citizens who challenged the constitutionality of a Pennsylvania state law that required all non-citizens 18 years or older to register with the state once a year, carry an alien-registration card with them at all times and show that card whenever it was demanded by a police officer or a state official. Aliens who refused to register could be fined and jailed.
The U.S. Supreme Court ruled in 1941 that the Pennsylvania law was unconstitutional, in part because the U.S. Constitution gives the federal government, not the states, the power over immigration, naturalization and deportation.
If Holder did challenge the Arizona law, he would use the same argument. And, constitutional-law experts say, it would carry greater weight in court coming from the Department of Justice.
“The DOJ could make that argument with much greater authority than a private litigant because the DOJ is directly involved with the enforcement of immigration law,” said William G. Ross of Samford University’s Cumberland School of Law in Birmingham, Ala.
Courts also tend to give a degree of deference to federal claims that state laws are creating conflict with federal enforcement, Turley said.
“Private groups will also be alleging that this conflict exists, but that’s much less direct or compelling than the federal government making those arguments itself,” Turley said.
That doesn’t mean that the federal government could successfully challenge the Arizona law.
“But the federal government could have an advantage because they could be seen as having more credibility,” said Andy Hessick, associate professor of law at Arizona State University’s Sandra Day O’Connor College of Law.
“They tend to be a little more careful than private groups in the suits that they bring. So, the mere fact that the United States government has decided to step in will make the court take notice.”