Judge raises doubts about challenge to Arizona law

PHOENIX — A federal judge pushed back Thursday against a contention by the Justice Department that an Arizona immigration law set to take effect next week would cause "irreparable harm" and intrude into federal immigration enforcement.

"Why can't Arizona be as inhospitable as they wish to people who have entered or remained in the United States?" U.S. District Judge Susan Bolton asked Deputy Solicitor General Edwin Kneedler. Her comment came during a federal court hearing Thursday afternoon in the Justice Department's lawsuit against Arizona and Gov. Jan Brewer, a Republican.

Bolton, a Democratic appointee, also questioned a core part of the Justice Department's argument that she should declare the law unconstitutional: that it is "pre-empted" by federal law because immigration enforcement is an exclusive federal prerogative.

"How is there a pre-emption issue?" the judge asked. "I understand there may be other issues, but you're arguing pre-emption. Where is the pre-emption if everybody who is arrested for some crime has their immigration status checked?"

At issue in the hearing was whether Bolton would grant a preliminary injunction to stop the law from taking effect while the federal lawsuit proceeds.

As dozens of protesters marched outside, the hearing marked the first round in the Obama administration's effort to stop the state's crackdown on illegal immigration. Seven opponents of the law were arrested after they sat in the middle of a busy thoroughfare outside the courthouse and unfurled a massive banner that said "We will not comply."

The tension in the courtroom reflected a broader national debate over what has become a divisive political issue: whether police should have the power to question people they suspect are in the United States illegally.

"The regulation of immigration is unquestionably, exclusively, a federal power," Kneedler told a crowded courtroom. Brewer, whose criticism of the federal lawsuit has helped her popularity at home, watched silently from the front row.

Lawyers for Brewer argued with equal force that the legislation, scheduled to take effect July 29, is a legal expression of a sovereign state's right to secure its borders against a tide of illegal immigration. The federal government, the lawyers said, has failed to act.

"We keep hearing that we can't really do anything about these illegal aliens; Arizona should just deal with it," said John Bouma, Arizona's lead attorney. "Well, the status quo is simply unacceptable."

The law, which Brewer signed in April, empowers police to question people they have a "reasonable suspicion" are illegal immigrants and to send them to federal authorities for possible deportation. President Obama has condemned the law, and the Justice Department filed suit July 6, setting up an unusual clash between the federal government and a state over who should enforce the nation's immigration laws.

Bolton did not indicate how she might rule, saying only that she will take the matter "under advisement." Her comments during the hearing, along with those she made during a hearing in the morning on another suit brought by civil-rights groups, suggested she is likely to rule on whether certain parts of the law are pre-empted by federal law, rather than striking down the entire law.

In the morning session, Bolton said the provision of the law that makes it a state crime to lack immigration documents apparently conflicts with a U.S. Supreme Court ruling that says states cannot create their own immigration-registration systems.

Bouma tried to convince Bolton otherwise. Then he gave up.

"I didn't have the feeling I persuaded you last week, either," he said, referring to similar arguments on another lawsuit.

Bolton subjected Justice Department lawyers to some pointed questions in the later court session.

Kneedler responded to her query about why Arizona authorities don't have the right to be inhospitable to illegal immigrants by saying the law has given the state the power to enforce immigration law "in, frankly, an unprecedented and dramatic way."

"It is not for one of our states to be inhospitable in the way this statute does," Kneedler said.

Based on the Constitution's supremacy clause, the pre-emption doctrine says federal law trumps state statutes. Because the federal government has "pre-eminent authority to regulate immigration matters," the government's lawsuit argues, the Arizona law must be struck down.

Bolton questioned key parts of that argument, especially relating to a section of the law that appears to require immigration-status checks if police stop someone for another law-enforcement purpose and suspect the person is an illegal immigrant.

Kneedler said the conflict with federal law comes because the status checks are mandatory, which could lead to federal agencies being overwhelmed with deportation requests. Top officials at U.S. Immigration and Customs Enforcement, whose agents will handle most of the calls from Arizona authorities if the law takes effect, have said they will not necessarily respond to every call.

"There really is no flexibility," Kneedler said.

He added that the Arizona law might lead to police harassment of U.S. citizens and is threatening to harm vital cooperation along the border with Mexican authorities, who have strongly condemned the law. "These are very concrete harms, very substantial foreign-policy concerns," he said.

Bouma ridiculed the foreign-policy concerns.

"Foreign outrage doesn't make the law pre-empted," he said. He accused the Obama administration of ignoring requests from Brewer and numerous other governors for more help in securing the border.

"You can't catch them if you don't know about them," he said. "And they don't want to know about them."

Material from The Associated Press and the Los Angeles Times is included in this report.