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Jewish World Review May 3, 2010 / 19 Iyar 5770 How Obama could lose Arizona immigration battle By Byron York http://www.JewishWorldReview.com | We know one thing for sure about the fight over Arizona's new immigration law. Civil-rights groups will file a lawsuit trying to kill the law and will ask a federal judge to issue an injunction to keep it from taking effect as scheduled this summer. What we don't know is how those proceedings will be affected by the Obama Justice Department, which is contemplating the highly unusual step of filing its own suit against the state of Arizona. Also unknown is the influence of President Obama himself, who has gone out of his way to raise questions — some of them strikingly uninformed — about the law. The drafters of the law knew the lawsuit was coming; a lawsuit is always coming when a state tries to enforce the nation's immigration laws. What the drafters didn't expect was Obama's aggressive and personal role in trying to undermine the new measure. "You can imagine, if you are a Hispanic American in Arizona ..." the president said Tuesday at a campaign-style appearance in Iowa, "suddenly, if you don't have your papers and you took your kid out to get ice cream, you're going to be harassed." On the same day, Attorney General Eric Holder said he was considering a court challenge. "The practice of the Justice Department in the past with states involving immigration has been to let the courts settle it and not weigh in as a party," says Kris Kobach, the law professor and former Bush Justice Department official who helped draft the Arizona law. Having Justice intervene, Kobach and other experts say, would be extraordinary. The problem for Obama and Holder is that the people behind the new law have been through this before — and won. Arizona is three-for-three in defending its immigration measures. In 2008, the state successfully defended its employer-sanctions law, which made it a state crime to knowingly employ an illegal immigrant. Facing some of the same groups that are now planning to challenge the new law, Arizona prevailed both in federal district court and at the 9th Circuit Court of Appeals, the nation's most liberal federal appeals court. In federal court in 2005, Arizona successfully defended Proposition 200, which required proof of citizenship for voting and also restricted benefits to illegals. And in 2006, officials won a state-court challenge to Arizona's human smuggling law. The arguments that liberal groups make against the new law are similar to those made in the past. Foremost among them is the claim that only the federal government can handle immigration matters, and thus the Arizona measure pre-empts federal law. Lawmakers thought of that ahead of time. "This law was carefully drafted to avoid any legal challenge on pre-emption in two ways," explains Kobach. "One, it perfectly mirrors federal law. Courts usually ask whether a state law is in conflict with federal law, and this law is in perfect harmony with federal law. "Two, the new law requires local law enforcement officers not to make their own judgment about a person's immigration status but to rely on the federal government," Kobach continues. Any officer who reasonably suspects a person is illegal is required to check with federal Immigration and Customs Enforcement. "As long as the state or city is relying on the federal government to determine immigration status, that will protect against a pre-emption challenge," says Kobach. But what if the Obama administration argues that the law is a burden on the federal government? Or refuses to assist Arizona in determining a person's legality? The drafters thought of that, too. There's a federal statute — 8 USC 1373, passed during the Clinton years — requiring the feds to verify a person's immigration status any time a state or local official asks for it. The federal government cannot deny assistance to Arizona without breaking the law itself. Given all that, Obama and Holder will have a hard time stopping this law. Their best hope is that a judge might be swayed by the political storm that has erupted, mostly on the left, by opponents raising the specter of fascism, Nazism, and a police state in Arizona. That was one thing the drafters didn't expect. As they see it, the old employer verification law was broader in scope and more serious in effect than the new law, and it didn't set off this kind of national controversy. That tells Kris Kobach one thing about the current battle: "It's more about the politics of 2010 than it is about this particular law." Every weekday JewishWorldReview.com publishes what many in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here. Comment on Byron York's column by clicking here. Previously: 04/27/10 What's behind the anti-Tea Party hate narrative? 04/20/10 As government expands, beware the post-office example 04/19/10 Who wins in 2010? Good luck reading tea leaves 04/12/10 GOP Obamacare strategy: Try repeal, then cut 04/05/10 Obamacare was mainly aimed at redistributing wealth 03/30/10 Message to Dems: People still don't like Obamacare 03/23/10 The coming consequences of Obamacare 03/16/10 Marco Rubio and the Republicans who love him 03/15/10 GOP hopes town halls take health care off table 03/08/10 Dems turn risky health vote into manhood contest 03/01/10 Why Obama defies the public on health care 02/22/10 South Carolina mulls 2012: Romney? Palin? Huck? 02/16/10 GOP winning war over Miranda rights for terrorists 02/09/10 Who are the 300 terrorists held in U.S. prisons? 02/02/10 Is Obama dissatisfied with being president? 01/19/10 The Republican dilemma: Good Michael or Bad Michael? 01/12/10 Now the lawmakers are figuring out what they didn't know 01/05/10 GOP deserves blame for Democratic excesses 12/29/09 Dems' dreams of a blue West begin to turn red 12/22/09 Why Dems push health care, even if it kills them 11/30/09 Dems' kamikaze mission: Health care by New Year's 11/23/09 Why it's a mistake to bring Gitmo prisoners here 11/16/09 Dems' slick fix: $210 billion of fiscal restraint 11/10/09 Obama can't be community organizer for the world 11/02/09 At key moment, Obama leaves health post unfilled 10/26/09 ‘Fierce urgency' for jobs, not health care’ 10/12/09 Facts hurt Jennings in youth sex controversy 10/05/09 Amid terror threat, Dems chip away at Patriot Act 09/27/09 In Afghanistan, let U.S. troops be warriors 09/21/09 Under fire, Democrats abandon ACORN in drove 09/14/09 Dems stifle Republican health care plans 09/08/09 For Dems, a serious Charlie Rangel problem 09/07/09 Obama's speech: Wrong setting for a sales job 09/01/09 What happened to the antiwar movement? 08/24/09 Why Dems may jam through health care plan 08/17/09 GOP thinks the unthinkable: Victory in 2010 08/10/09 The empty words of a journalist turned flack 08/03/09 Probe finds new clues in AmeriCorps IG scandal 07/27/09 Obamacare haunted by unkept promises of stimulus 07/20/09 Why the GOP failed the Sotomayor test 07/13/09 What the GOPers will ask Sotomayor 06/29/09 Serious questions remain for Mark Sanford 06/22/09 How GOPers can crack the AmeriCorps scandal 06/16/09 Worried about Sotomayor? Consider Andre Davis 06/08/09 Can Mitch Daniels save the GOP? 06/01/09 When the Dems derailed a Latino nominee 05/26/09 Why the GOP will defeat Obama on healthcare 05/19/09 Rosy report can't hide stimulus problems 05/12/09 The Reagan legacy is the man himself 05/05/09 Sen. Specter, meet your new friends 04/27/09 Ted Olson: ‘Torture’ probes will never end 04/20/09 Who's Laughing at the ‘Axis of Evil’ today? 04/14/09 Congress needs Google to track stimulus money 04/06/09 Beyond AIG: A bill to let Big Government set your salary 03/30/09 On Spending and the Deficit, McCain Was Right 03/24/09 It's Obama's crisis now 03/17/09: Geithner-Obama economics: A joke that's not funny © 2009, NEA

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