April 26, 2010
New litigation laboratory for criminal justice federalism with Arizona immigration law
The big news lately in the debate over immigration from from Arizona thanks to its recent passage of a controversial immigration-enforcement bill. Based on what I have seen and read, the new law almost reads like a law professor's exam question, and this Arizona Republic article ably reviews some of the major legal issues that are sure to be hotly litigated in the weeks and months ahead. The article is headlined "Court fight looms on new immigration law; Legislation vulnerable to challenge, says expert; supporters argue it's legally sound," and this particular passage caught my attention:
Kris Kobach, a law professor at the University of Missouri-Kansas City School of Law who counseled [Arizona State Senator Russell] Pearce when he was writing Senate Bill 1070, said Arizona simply is taking action on what Congress already has deemed illegal, so the state is not infringing on federal authority or running afoul of the supremacy clause.
"The bill basically makes it a penalty under state law to do what is already a crime under federal law," he said. "If the state is concurrently prohibiting the same behavior that the federal government is, then the state is not preempted and is acting consistently with Congress' objectives."
Because I am not an expert on either immigration law or federalism jurisprudence, I cannot readily assess whether Professor Kobach's argument here is compelling. But I can readily assert that the litigation which will unfold in Arizona over this new state criminal law is must-watch-closely material for everyone interested in modern criminal justice debates.
In various traditional criminal justice settingse.g., in the always on-going fight against illegal gun, drug and sex trafficking "cooperative federalism" is often praised and championed as the best way for different sets of police and prosecutors to take on challenging crime problems. Professor Kobach's claim here is essentially that Arizona is merely trying to be a cooperative criminal justice partner with the feds in enforcing illegal immigration laws. But, as all the media buzz highlights, lots of different folks seem deeply concerned with Arizona's chosen approach to "cooperative federalism" in this context.
April 26, 2010 at 11:03 AM | Permalink
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As a brown haired, medium complected person, I'm wondering what constitutes "reasonable suspicion" when one is driving down the road.
Posted by: Talitha | Apr 26, 2010 4:50:17 PM
De Canas v. Bica, 424 U.S. 351, 354 (1976) (“Power to regulate immigration is unquestionably exclusively a federal power.”)
Posted by: anon | Apr 26, 2010 5:53:26 PM