- The Washington Times - Wednesday, September 8, 2010

The Washington Legal Foundation asked the U.S. Court of Appeals for the Ninth Circuit in San Francisco on Wednesday to reject a challenge by the Obama administration to Arizona’s new immigration law, calling it a “well-designed effort” to provide enforcement assistance to federal immigration officials.

“State and local governments have an important role to play in enforcing our nations immigration laws,” said WLF chief counsel Richard Samp after filing a brief in the case. “Unless they are both permitted and encouraged to assist the federal government in enforcing those laws, it is unlikely that we will ever be able to stem the flood of illegal immigrants.”

The Justice Department, at the urging of the White House, sued in July to stop Arizona’s new immigration law, known as SB 1070, in a move that escalated President Obama’s involvement in the thorny issue of immigration reform and stacked him against a majority of Americans who support the law.

The department argued that Arizona lawmakers were attempting to violate the Constitution by trying to supersede federal law and by impairing illegal immigrants’ right to travel and conduct interstate commerce. It said only the federal government can write immigration rules and that “diverting federal resources away from dangerous aliens such as terrorism suspects and aliens with criminal records” would have an impact on the entire country’s safety.

“Setting immigration policy and enforcing immigration laws is a national responsibility,” Attorney General Eric H. Holder Jr., said at the time. “Seeking to address the issue through a patchwork of state laws will only create more problems than it solves.”

The WLF urged the appeals court to overturn a preliminary injunction against enforcement of the law, issued in July by an Arizona federal district judge. It argued that the Arizona statute does not conflict with federal law but rather is a well-designed effort to provide enforcement assistance to federal immigration officials.”

A nonprofit public interest law firm based in Washington, D.C., the WLF has described SB 1070 as a “multi-faceted effort to assist federal authorities in implementing several well-established federal policies: removing illegal aliens from the U.S. and eliminating incentives that cause many such aliens to seek to remain in this country.

It said SB 1070 includes numerous safeguards to ensure that it does not result in harassment of citizens and resident aliens, including provisions that prevent Arizona officials from taking action until after they have been informed by federal officials that a suspect is an illegal immigrant.

“Congress has adopted many laws designed to encourage state and local governments to assist in the immigration enforcement effort,” the WLF said. “Nonetheless, the Obama administration has determined that it does not want states to provide the level of assistance that Arizona is offering.”

WLFs court brief focuses on one section of the new law that makes it a misdemeanor for anyone to solicit or perform employment if he or she is not legally present in the country. The Justice Department has said the section conflicts with federal law because it provides for penalties that are in excess of those provided for under federal law.

But the WLF said Congress adopted a statute in 1986, the Immigration Reform and Control Act (IRCA), whose express purpose was to eliminate all employment of illegal aliens, thereby eliminating a major incentive for aliens to enter the U.S. without authorization. It said in the brief that a state statute that adopts additional measures to prevent the employment of illegal aliens cannot possibly be deemed to conflict with federal immigration policy.

The Arizona law requires police to check the legal status of anyone they suspect of being in the country illegally whom they encounter while enforcing other laws already on the books. It says race may not be used as a factor for determining who should be questioned, but opponents, including Mr. Obama, say they fear it will lead to racial profiling nonetheless.

WLF filed its brief on behalf of seven clients, including Republican Reps. Dan Burton of Indiana, Lynn Jenkins and Jerry Moran of Kansas, and Tom McClintock of California, and the Allied Educational Foundation, Concerned Citizens and Friends of Illegal Immigration Law Enforcement, and the National Border Patrol Council.

Polls show a majority of Americans support Arizona’s actions, but a vocal minority, led by increasingly powerful Hispanic rights activists, has protested every step of the way.

• Jerry Seper can be reached at jseper@washingtontimes.com.

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