Last Wednesday, the attorneys general of eight states and one U.S. territory filed a “friend of the court” brief in the federal lawsuit (U.S.A. v. Arizona) to support Arizona’s new immigration enforcement law, SB 1070. (Cox Press Release, July 14, 2010). Led by Michigan Attorney General Michael Cox, other signatories included the attorneys general from Florida, Alabama, Nebraska, Pennsylvania, South Carolina, South Dakota, Texas, Virginia, and the Northern Mariana Islands. Because the federal court has limited the length of such amicus briefs, the states’ argument goes straight to the heart of the federal complaint: preemption. (Id.)
In their brief, the states forcefully refute the Department of Justice’s argument that SB 1070 is preempted under the United States Constitution. First, they reject DOJ’s argument that SB 1070 constitutes an impermissible “regulation of immigration.” Case law, they argue, has defined a “regulation of immigration” as defining who should or should not be admitted into the country and the conditions under which a legal entrant may remain. SB 1070 does not do either. Moreover, the states point out that federal courts have long held that state law enforcement officers have inherent authority to arrest for violations of federal law as long as the arrest is authorized by state law. (Amicus Brief)
Second, the states reject DOJ’s argument that SB 1070 conflicts with federal laws such that it “stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.” SB 1070, the states argue, is fully consistent with Congress’s intent of apprehending illegal aliens even if it does not facilitate the Executive’s wish to selectively abandon the enforcement of immigration laws. Moreover, the states argue, SB 1070 does not interfere with the Executive’s discretion in how it treats aliens as DOJ claims because the federal government still retains that discretion once Arizona law enforcement officers turn over an illegal alien to federal authorities. (Id.)
In a statement released with the brief, Michigan Attorney Michael Cox said, “Arizona, Michigan and every other state have the authority to enforce immigration laws, and it is appalling to see President Obama use taxpayer dollars to stop a state’s efforts to protect its own borders.” (Cox Press Release, July 14, 2010). Others who joined the brief sounded a similar note. Virginia Attorney General Ken Cucinelli remarked, “[F]ederal law expressly allows states to arrest people who are not legally present in the United States. Arizona’s law doesn’t change any of this. That’s why we are stunned that the government has sued Arizona.” (Cucinelli Press Release, July 14, 2010). South Dakota Attorney General Marty Jackley said South Dakota joined the amicus brief because federal authorities aren’t doing enough to enforce current immigration laws. “We felt it was right for the state of South Dakota because this is really a public safety issue,” said Jackley. (KSFY.com, July 15, 2010)
Arizona Governor Jan Brewer thanked Cox and the other attorneys general for supporting her state: “The United States was founded as a nation of laws and not of men, and I am deeply grateful for the national outpouring of support for the rights of states and the rule of law.” (Politico, July 14, 2010).