Under the U.S. Supreme Court: 'Obama's war on Arizona'

Arizona governor Jan Brewer speaks to the media following a meeting with President Barack Obama on Arizona's new immigration law, at the White House in Washington on June 3, 2010. UPI/Kevin Dietsch
Arizona governor Jan Brewer speaks to the media following a meeting with President Barack Obama on Arizona's new immigration law, at the White House in Washington on June 3, 2010. UPI/Kevin Dietsch | License Photo

WASHINGTON, Sept. 11 (UPI) -- Don't try to sugar coat it: Arizona and the federal government are locked in a bruising fight over immigration law and the treatment of Hispanics, and each side hopes to deliver the legal equivalent of what used to be called an all-out rescue squad, emergency room "ass whuppin'."

The broadening struggle has the blogosphere sizzling, with one right-leaning site posting the headline, "Obama's war on America."


The site, "American Thinker," rips into the administration for what it considers its latest outrage -- the Arizona immigration case being included in a human rights report to the United Nations.

"First, (President) Barack Obama attacked America by suing Arizona for passing a law that merely reflected federal immigration law," the posting says, somewhat inaccurately. "And now this."

The Washington Post reports the Arizona case was "mentioned" in the report to the U.N. Human Rights Council, and consisted of a single paragraph in the larger document.

That paragraph, Politico reported, reads: "A recent Arizona law, S.B. 1070, has generated significant attention and debate at home and around the world. The issue is being addressed in a court action that argues that the federal government has the authority to set and enforce immigration law. That action is ongoing; parts of the law are currently enjoined."


Republican Arizona Gov. Jan Brewer reacted angrily, the Post said, saying the inclusion of the case was "downright offensive," especially in a report to a council "whose members include such renowned human rights 'champions' as Cuba and Libya." The council also includes China and India, as well as a number of African and Arab states.

In a letter to Secretary of State Hillary Clinton, Brewer said the inclusion was "internationalism run amok."

"The idea of our own American government submitting the duly enacted laws of a state of the United States to 'review' by the United Nations is internationalism run amok and unconstitutional," Brewer wrote to Clinton. "Human rights as guaranteed by the United States and Arizona Constitutions are expressly protected in S.B. 1070 and defended vigorously by my administration."

In a parting shot, she added, "If the federal government secured the entire border and enforced our immigration laws, these human rights problems would not be occurring for citizens, legal residents and illegal immigrants."

A U.S. State Department spokesman blandly explained the case was included in the report to serve as a model for the rest of the world on how the United States settles its disputes -- in court.


Meanwhile, federal legal documents have descended like snow on Arizona in several suits.

Besides the U.S. Justice Department's so far successful challenge to Arizona's tough, some say draconian, immigration law, the department is investigating the Maricopa County Sheriff's Office in Phoenix for alleged civil rights violations, and suing the office and Sheriff Joe Arpaio for allegedly refusing to cooperate with the investigation.

Title VI of the 1964 Civil Rights Act prohibits discrimination in state programs that receive federal funds, and says recipients have to cooperate with investigations by providing access to documents, facilities and staff.

The Justice Department said it filed suit Sept. 2 "after exhausting all cooperative measures to gain access to (the Maricopa County Sheriff's Office) documents and facilities, as part of the department's investigation of alleged discrimination in MCSO's police practices and jail operations. Since March 2009, the department has attempted to secure voluntary compliance with the department's investigation. MCSO's refusal to cooperate with the investigation makes it an extreme outlier and the department is unaware of any other police department or sheriff's office that has refused to cooperate in the last 30 years."

The Wall Street Journal reports the department and Arpaio also are fighting over whether Justice officials improperly contacted sheriff's office employees for testimony, rather than going through lawyers.


Arpaio lawyer Robert Driscoll was dismissive of the suit for alleged lack of cooperation, instead of directly for discrimination. "I think they're just trying to distract from the fact they have no underlying case," he told the Journal. "What they don't want to do is to allege that there is any discrimination by the Maricopa sheriff's office, because if they have to prove that they can't."

Thomas Perez, assistant attorney general for the civil rights division, had a different take.

"The actions of the sheriff's office are unprecedented," he said in a statement when the suit was filed. "It is unfortunate that the department was forced to resort to litigation to gain access to public documents and facilities."

An attempt to work out a deal and avoid the suit broke down in August. Arpaio blames the Justice Department.

"They smiled in our faces and then stabbed us in the back with this lawsuit," he told the Journal. "The Obama administration intended to sue us all along, no matter what we did to try to avert it."

The department filed a separate lawsuit Aug. 30 alleging immigration-related employment discrimination by the Arizona Community Colleges System.

"The department's investigation revealed that Maricopa Community Colleges required all newly hired non-citizens to present additional work authorization documents beyond those required by law, but did not require U.S. citizens to do so," the department said in a statement when filing the suit. "The Immigration and Nationality Act requires employers to treat authorized workers in the same manner during the hiring process, regardless of their citizenship status. Yet, Maricopa Community Colleges imposed different and greater documentary requirements on at least 247 non-U.S. citizens, and did not end this practice until January 2010, well after the Justice Department initiated its investigation."


That suit brought this response from the Heritage Foundation, a conservative Washington think tank.

"(Attorney General) Eric Holder's Justice Department really seems to believe that its primary responsibility is to help aliens who violate federal law as opposed to tax-paying citizens of the United States," the organization said Sept. 1 in its online avatar, "The Foundry."

"What else can one say about the latest action filed by the Justice Department's Civil Rights Division against Arizona community colleges claiming they violated federal law when they asked non-citizens applying for jobs to produce their green cards?"

The posting conceded: "While Perez may have a technical basis for this lawsuit, this particular provision of federal law and how it is being interpreted is, quite frankly, ridiculous. It is a good example of the inane contradictions inherent in some aspects of our immigration law and this administration's misplaced enforcement priorities.

"It also demonstrates the misuse of Justice Department resources, which are being used to attack Arizona in federal district court and now in a federal immigration court, while hundreds of thousands of outstanding deportation orders pending at Justice go unenforced and ignored," the posting said. "The administration's abuse of its law enforcement powers to achieve political ends is both disturbing and very damaging to the best interests of the country."


Meanwhile, Arizona's school chief says the federal government is investigating the states schools over discrimination charges involving teachers whose native language isn't English.

The state superintendent of public instruction, Tom Home, told The Arizona Republic the investigation is by the Justice and Education departments.

The investigation apparently was sparked by instructions to Arizona school districts in April to fire teachers who weren't fluent in English. Horne said: "Teachers who are teaching English need to be fluent in English, and if kids can understand what they're saying, it's not an issue."

Of course, the Arpaio, English teacher and community college cases, even the outrage over the U.N. report, are on the sideline. The main event is the Justice Department's challenge to the state immigration law.

Before striking down the main provisions of the law in July, U.S. District Judge Susan Bolton acknowledged that federal efforts to stem illegal immigration -- which cost Arizona about $1.5 billion annually -- have been less than successful.

In her ruling, Bolton said the state law was enacted against "a backdrop of rampant illegal immigration, escalating drug and human trafficking crimes and serious public safety concerns."

But the judge blocked a key provision of the state law that required police to "make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested." She also blocked a section making it "a crime for the failure to apply for or carry alien registration papers" and making it "a crime for an unauthorized alien to solicit, apply for or perform work."


Bolton said those provisions pre-empt U.S. law, and "the United States is likely to suffer irreparable harm if the court does not preliminarily enjoin enforcement of these sections."

"The United States argues principally that the power to regulate immigration is vested exclusively in the federal government, and that the provisions of (the state law) are therefore pre-empted by federal law," she said.

Arizona has appealed Bolton's ruling to the 9th U.S. Court of Appeals. That court should hear the case in November. If the case is then taken to the U.S. Supreme Court, as seems likely, the high court might not have to decide whether to take the case until late 2011, with argument and a ruling sometime after that.

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