Arizona's tough new immigration law could face tough court challenge
As the furor against Arizona's strict new immigration law escalates, immigrant advocates are preparing to move the fight to the courtroom, where their legal challenges have sunk other high-profile laws against illegal migrants.
The Los Angeles attorney who successfully challenged Texas and California efforts to bar illegal migrants from public services said this week that the Arizona law was similarly doomed because it unconstitutionally attempts to usurp federal jurisdiction to regulate immigration and could violate guarantees of equal protection with selective enforcement against certain ethnic groups.
The law makes it a state crime for illegal migrants to be in Arizona and requires police to check for evidence of legal status.
"The Arizona law is doomed to the dustpan of other unconstitutional efforts by local government to regulate immigration, which is a uniquely federal function," said Peter Schey, president of the Center for Human Rights and Constitutional Law in Los Angeles.
But the attorney who helped write the Arizona law said he carefully crafted the measure to avoid those constitutional issues. Kris Kobach, a University of Missouri-Kansas City law professor who handled immigration law and border security under U.S. Atty. Gen. John Ashcroft during the Bush administration, said the law does not seek to regulate immigration but merely adds state penalties for what are already federal crimes.
Under the legal doctrine of "concurrent enforcement," he said, states are allowed to ban what is already prohibited by federal law. As an example, he said, the courts have upheld efforts by California, Arizona and other states to enact sanctions against employers who hire illegal migrants.
Kobach, who is running as a Republican candidate for Kansas secretary of state, said he took care to include an explicit ban on using "race, color or national origin" as the sole basis for stopping someone to ask for papers.
"I anticipate that anyone who challenges the law will throw everything but the kitchen sink at this to see if it will stick," Kobach said. "But this is consistent with federal law."
As both sides gear up for their legal battle, the wild card is the panel of judges who end up deciding the case. Judges have ruled differently on key immigration questions.
Even as judges have upheld state employer sanction laws, they have struck down laws banning illegal immigrants from renting property, most recently in Texas last month. Schey himself said he is not confident that legal challenges against the Arizona case would prevail in today's political and legal climate.
The U.S. Supreme Court is a very different panel today than it was when a narrow majority of 5-4 struck down the 1975 Texas law banning unauthorized migrant children from public schools, he said.
"It's a far cry from a slam-dunk case," Schey said. "It's a very close call with the current composition of the Supreme Court. What's really needed here is federal leadership."
-- Teresa Watanabe
Photo: Immigration protests in Arizona. AP