U.S. Targets Tough Immigration Laws
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U.S. Targets Tough Immigration Laws

The Obama administration is escalating its crackdown on tough immigration laws, with lawyers reviewing four new state statutes to determine whether the federal government will take the extraordinary step of challenging the measures in court.

Justice Department attorneys have sued Arizona and Alabama, where a federal judge on Wednesday allowed key parts of that state’s immigration law to take effect but blocked other provisions. Federal lawyers are talking to Utah officials about a third possible lawsuit and are considering legal challenges in Georgia, Indiana and South Carolina, according to court documents and government officials.

The level of federal intervention is highly unusual, legal experts said, especially because civil rights groups already have sued most of those states. Typically, the government files briefs or seeks to intervene in other lawsuits filed against state statutes.

“I don’t recall any time in history that the Justice Department has so aggressively challenged state laws,” said Jonathan Turley, a constitutional law expert at George Washington University Law School.

The legal skirmishing was triggered by last year’s Arizona law, which requires that police check immigration status if they stop someone while enforcing other laws. Amid a fierce national debate, a Justice Department lawsuit led federal courts to block that measure’s most contested provisions, but similar laws were approved in recent months in Alabama, Utah, Georgia, Indiana and South Carolina. At least 17 other states have considered such measures this year.

Although Wednesday’s ruling in Alabama was something of a setback, the Justice Department and civil rights groups have been on a winning streak. The ACLU and other groups have obtained rulings temporarily blocking all or key parts of immigration laws in Utah, Georgia and Indiana, with Republican- and Democrat-appointed judges blasting the measures as devoid of due process protections or for targeting illegal immigrants.

Now, the administration is under pressure from some quarters to intervene in those states, as well as South Carolina, where a new immigration law is set to take effect Jan. 1. Civil rights groups have been lobbying the White House and Justice and State departments, according to people familiar with the effort, and the ACLU is circulating an online petition calling for federal lawsuits. More than 23,000 people have signed.

On the other side, Utah is lobbying the government to stay out. Mark Shurtleff (R), that state’s attorney general, has met with senior Justice officials, who he said are considering whether to seek to join the civil rights lawsuit as a plaintiff.

“We believe our defense is much better if the Justice Department is not the one saying our law is superseded by federal law,” said Shurtleff, who added that Utah “worked very hard and carefully to make our law different from Arizona” so it is constitutional.

The legal maneuvering comes as immigration is flaring as a political issue, with many conservatives and GOP presidential candidates calling for a hard line on the nation’s estimated 12 million illegal immigrants.

Conservatives have criticized the Obama administration for suing Arizona and Alabama, and some legal observers said they detect political motives in the administration’s additional legal steps. The White House and Obama’s reelection campaign have been trying to rekindle excitement among Hispanic voters, many of whom have been disappointed over his immigration policies.

“It suggests that they are waiting to test the political winds and see if this is good or bad for the Obama administration,” said Kris Kobach, a former senior Justice Department official in the George W. Bush administration who is helping Arizona and Alabama defend the lawsuits.

Justice officials have denied any political motives and said they are proceeding based on the facts and the law. Obama and Attorney General Eric H. Holder Jr. have been critical of the state measures, with the president telling a roundtable with Latino reporters on Wednesday that the Arizona law created “a great danger that naturalized citizens, individuals with Latino surnames, potentially could be vulnerable to questioning; the laws could be potentially abused in ways that were not fair to Latino citizens in Arizona.”

Obama added: “We can’t have a patchwork of 50 states with 50 different immigration laws.”

Xochitl Hinojosa, a Justice Department spokeswoman, said lawyers are reviewing the Utah, Indiana, Georgia and South Carolina laws and the “legal principles” established in the Arizona case. “Based on that review and applying those principles, the United States will decide whether and when to bring suit challenging particular state laws,” Hinojosa said.

Hovering over the debate is the possible involvement of the Supreme Court. The U.S. Court of Appeals for the 9th Circuit ruled in April that the most contested parts of Arizona’s immigration law will remain blocked from taking effect. They include provisions allowing for warrantless arrests of suspected illegal immigrants and criminalizing the failure of immigrants to carry registration papers.

Arizona Gov. Jan Brewer (R) is seeking Supreme Court review, and the court could decide to hear the case this term. That would mean a decision before the 2012 presidential election, one that would affect the other state laws as well.

“My guess is that they will take it,” said Jonathan Benner, a Washington lawyer who has argued numerous cases involving federal-state conflicts. “This is the kind of case that is most interesting to the Supreme Court.”

The other state statutes, signed into law over the past five months, include a range of provisions, including authorizing police to question people’s immigration status in a variety of circumstances, limiting the ability of immigrants to use certain forms of identification and criminalizing the harboring or transport of illegal immigrants.

The Justice Department and civil rights groups are arguing that the laws will lead to harassment of immigrants or racial profiling and that they are “preempted” under federal law, which gives the federal government control of immigration enforcement.

“You’d have to be crazy to pass one of these laws, knowing you’re buying yourself an enormous lawsuit,” said Cecillia D. Wang, director of the ACLU Immigrants’ Rights Project. She called the Alabama statute, signed into law in June, “by far the most draconian and extreme.”

The Justice Department and a coalition of civil rights groups sued over the law, which caused particular outrage because it requires public school officials to determine citizenship by seeking children’s birth certificates. Civil rights advocates say that will keep some children out of school because their parents will fear being deported.

On Wednesday, U.S. District Judge Sharon Blackburn allowed that provision to take effect, along with other elements of the law, until she can issue a final ruling. But she temporarily blocked other provisions, including those making it crimes for illegal immigrants to solicit work and to transport or harbor them.

Alabama lawyers have backed the law’s constitutionality, and Gov. Robert Bentley (R) on Wednesday called it “the strongest immigration law in the country.” Other states also have defended their laws, with some accusing the federal government of failing to stem the growing problem of illegal immigration.

But some judges have been highly critical. In Indiana, U.S. District Judge Sarah Evans Barker in June blocked the two most contested parts of that state’s law. The provisions would authorize warrantless arrests of illegal immigrants in certain circumstances and make it a crime to accept an identification card used by many immigrants.

Barker, an appointee of President Ronald Reagan, called the law “seriously flawed” and said that it was completely “void” of due process protections for immigrants and that parts of the state’s defense were “entirely fanciful.”

The judge also had strong words for all of the new state immigration laws, calling them “tortuous attempts to carve out legally permissible roles that do not run afoul of federal jurisdictional and constitutional requirements.”

Indiana officials are defending the law as the case proceeds toward trial in November. Greg Zoeller (R), that state’s attorney general, said the judge’s ruling “can be seen as an indictment of the federal government on their failure to enact and enforce immigration policy.”

Staff writer David Nakamura contributed to this report.