The Department of Justice filed suit Tuesday, asking a federal judge to block Arizona's new law aimed at illegal immigrants from taking effect.
Legal papers filed in U.S. District Court in Phoenix contend SB 1070 "is preempted by federal law and therefore violates the Supremacy Clause of the United States Constitution." The lawsuit says the legislation conflicts with the federal government's need to balance the competing interests of enforcing federal immigration law with the country's diplomatic relations with other countries, including Mexico.
"SB 1070 ... attempts to second-guess federal policies and re-order federal priorities in the area of immigration enforcement and to directly regulate immigration and the condition of an alien's entry and presence in the United States despite the fact that those subjects are federal domains and do not involve any legitimate state interest," wrote Assistant Attorney General Tony West who heads the civil division of the Department of Justice.
But Sen. Russell Pearce, R-Mesa, who crafted the law and pushed it through the Legislature, said the lawsuit has only one purpose.
"This is about the Obamas' policy of non-enforcement," he said. "This interferes with their plan for amnesty."
He said the administration has no interest in dealing with illegal immigration itself and now wants to block Arizona from doing what the federal government refuses to do.
"They are complicit," he said of the administration.
"They are aiding and abetting the enemy," Pearce said, and are violating their oath of office. "They ought to be impeached."
Gov. Jan Brewer, in a prepared response, said she believes the law is "both reasonable and constitutional."
She also rejected the contention that SB 1070 is preempted by federal law, saying it is "designed to complement, not supplant, enforcement of federal immigration laws."
Brewer said she was glad the federal lawsuit did not claim the law will lead to racial profiling, a claim in some of the five other lawsuits already filed challenging the law.
But that may be just a temporary victory: A top justice department official said Tuesday that's a separate legal issue. He said if SB 1070 does take effect as scheduled on July 29, his agency's civil rights division will monitor how the law is implemented and, if necessary, file a separate action.
Pinal County Attorney James Walsh said the latest filing may be stronger than the other five lawsuits.
He said one of the key arguments in all of them is whether federal laws preempt the Arizona statute. But Walsh, a former assistant state attorney general, said none of the plaintiffs in those other claims may have legal standing or ability to show any specific harm on the issue of federal supremacy, something the federal government is not required to prove.
The law requires police who have stopped someone to check their immigration status if there is "reasonable suspicion" they are in this country illegally. It also imposes criminal penalties on foreigners who fail to federally register or carry their immigration documents.
Other provisions make it a state crime for undocumented workers to seek employment in Arizona and for people to knowingly harbor or transport those who are illegal immigrants.
Central to the case is whether the Arizona law interferes with what West said is the need of the federal government to decide exactly how and when to enforce immigration laws.
"Assuring effective enforcement of the provisions against illegal immigration and unlawful presence is a highly important interest," West wrote. "But it is not the singular goal of federal immigration laws."
He said the laws also take into account "uniquely national interests" like facilitating trade and commerce, welcoming foreign nationals who visit, and making sure the treatment of foreign nationals here "does not harm our foreign relations with the countries from which they come or jeopardize the treatment of U.S. citizens abroad."
Pearce said SB 1070 simply lets the state enforce existing federal immigration laws. But West said that's not the case.
For example, he said federal law does make it illegal to hire an undocumented worker. And there are separate laws aimed at would-be workers who present fraudulent documents.
But nothing in any of those laws, West said, makes it a crime for an illegal immigrant to seek work.
"In fact (Congress) decided that criminal sanctions for seeking or obtaining employment would run counter to the purposes of the immigration system," he wrote.
Pearce said West is off base with his objections.
"It's a felony to hire them," he said. "So it ought to be a crime to solicit."
West had similar problems with the requirement of police to check the immigration status of those they suspect are in this country illegally. At the same time, SB 1070 also says any legal Arizona resident can file suit against any official or agency that adopts or implements a policy that restricts enforcement of federal immigration laws.
He said that undermines what had been the discretion of police on whether to verify someone's immigration status. Nor was West convinced that the requirement for "reasonable suspicion" is sufficient to protect rights.
"Arizona's alien inspection scheme therefore will subject lawful aliens to the possibility of inquisitorial practices and police surveillance, a form of treatment which Congress has plainly guarded against in crafting a balanced, federally-directed immigration enforcement scheme."
Both Brewer and Pearce also chided the Obama administration for what they see as a selective approach to claiming federal supremacy in enforcing immigration laws. Pearce said that ignores various local policies and practices that now instruct police not to inquire about someone's immigration status.
"These patchwork local ‘sanctuary' policies instruct the police not to cooperate with federal immigration officials," Brewer said.
In a prepared statement, Attorney General Eric Holder said Arizonans "are understandably frustrated with illegal immigration." And he said the federal government has a responsibility to comprehensively address those concerns.
"But diverting federal resources away from dangerous aliens such as terrorism suspects and aliens with criminal records will impact the entire country's safety," the statement said.
"Setting immigration policy and enforcing immigration laws is a national responsibility," Holder continued. "Seeking to address the issue through a patchwork of state laws will only create more problems than it solves."
Homeland Security Secretary Janet Napolitano pointed out that, as Arizona governor, she vetoed similar bills.
"They would have diverted critical law enforcement resources from the most serious threats to public safety and undermined the vital trust between local jurisdictions and the communities they serve," her statement said.