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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

Comments () | Archives (14)

The courts will agree with us. We will not be stopped. This territory will be ours again. The courts will agree with us.

My God what is this world coming to... We are going backwards,,next it will be the african -americans, then the Jewish... so sad...

My country, 'tis of thee,
Sweet land of liberty,
Of thee I sing;
Land where my fathers died,
Land of the pilgrims' pride,
From every mountainside
Let freedom ring!

Why doesn't AZ (and CA) crack down on employers?

Send all of the illegals to Los Angeles or San Francisco.

Its an insult to those who suffered at the hands of the Nazis, to make any kind of comparison of a legitimate law to what they did. Shame on those who would even think this would come close to the killing of innocents. If those who are illegal would fight for their rights in their home country as hard as they are fighting in this country (which allows them to speak), they might be better off.

Why are illegal immigrants allowed to use our schools and other public services? It seems like that is a) giving them more reason to come here, and b) rewarding them for breaking the law.

Basically, the message is that, if you can make it into the country by any means, you can stay and use any services you want. And since you're here illegally, oops, we can't collect any taxes from you should you choose to work.

This Arizona law sucks, but it seems like immigrant groups would go to court to overturn even the idea that the USA has borders. We're not quite all the way to a border-less utopian world yet, and more unskilled, uneducated, poor illegal immigrants isn't going to help us get there. Millions and millions of them are probably enough...

White, Christian, conservatives have ruined this country.

Do any of you cry babies know what is in the law? It's basically the same as the Federal law on immigration. Also legal US residents and visitors are required to carry I.D. such as a passport, green card or drivers license and present it to a peace officer if asked. Many on the far left also seem to forget that these people came here illegally! What part of that is so hard to understand?? Legal immigrants verses illegal-there is a difference. Try flying into LAX from an International flight and not have a passport!

Why don't Mexican want to stay in their beloved Mexico?

Ah, this is going to be great - Schey will meet his Waterloo! And no,"we" are not going backwards, "not surprised". If you'd read the text of the law, as I have, you would see that I'm posting the truth. You've got no legal or moral legs to stand on, only emotion.

We should agree with AZ. All these politicians that disagree are just doing it to gain votes and not doing it for the sake of the country and citizens.

We the people should be able to differentiate between ILLEGALS AND LEGALS. If we can't differentiate that than what is the use of the laws of this country. We are destroying the fabric of this country by accepting illegal immigration.

This is also a slap in the face of any legal immigrants. These people have waited in line, gone through incredible hurdles, pay incredible fees to immigration lawyers, and waiting anxiously for their turn. Here comes amnesty and whalla these people skip through everyone. IS THIS FAIR? IS THIS THE PROCESS WE WANT EVERY OTHER YEAR?

Non-resident student pays a lot of money for tuition in the College.. ILLEGALS FREE... think about it. $200 per unit.

Ein Volk, ein Land, ein Fuehrer! There is nothing to stop the Aryan race, except the maybe the nuthouse. So when are the Arizona police going to start wearing swastika armbands?

Where there is no order, there is confusion, compromise, complacency, and chaos. Az. is trying to bring order where the federal government failed, because of corporate and special interest. Because the federal government has not enforced the reasonable laws on the books, American citizens have watched access to the American dream diminish, there is no security net to protect home because its used to protect our neighbors home. we cant lift our citizens out of poverty because we're lifting another nations poor out of poverty. If Mexicans want a better way of life, why cant they petition their government to make it happen, just like Americans petition their government?


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