July 7, 2010 Posted by Paul at 10:12 PM

"The Obama Justice Department has filed suit against the State of Arizona, asserting that Arizona's new immigration law is preempted by federal law. At least one expert on preemption believes that the case is a close one. And I doubt that even the Obama Justice Department would bring a frivolous action.

I'm not an expert in this area. But for what it's worth, my initial take is that Arizona has a better case than the Justice Department.

As I understand it, this is not a situation where Arizona has enacted immigration legislation that's inconsistent with federal immigration law. Nor, to my knowledge, has Arizona authorized any enforcement mechanisms that violate other federal law.

The Justice Department's theory is, instead, that the Arizona law is unconstitutional because the government has preempted the field of immigration. Under the "field preemption" theory, a state law can, under certain circumstances, be preempted even if it is not inconsistent with federal law.

The power to regulate immigration has been held to be exclusively federal power. But the Supreme Court has also made it clear that not every state enactment that deals with aliens is a regulation of immigration and thus per se pre-empted. In De Canas v. Bica, 424 U.S. 351 (1976), the Court upheld an attempt by California "to strengthen its economy by adopting federal standards in imposing criminal sanctions against state employers who knowingly employ aliens who have no federal right to employment within the country." Here, as I understand it, Arizona similarly attempts to vindicate important state interests - including protecting the safety of Arizona residents - by adopting and enforcing federal standards.

To be sure, a state cannot enact legislation that "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52 (1941). However, it's difficult to see how the Arizona law stands as such an obstacle.

The government argues that the Arizona will hurt the federal enforcement effort because it will unduly burden federal enforcement agencies. The lawsuit alleges, for example, that the flood of illegal immigrants detained for deportation as a result of the Arizona law will cause authorities to lose focus on top-priority targets, such as terrorists.

This argument seems highly speculative. It pertains, moreover, to the alleged purposes and objectives of the executive branch, not those of Congress. I suspect the legislative history will show that the purposes and objectives of Congress with respect to aliens without visas was, to the extent possible, to keep all such persons out of the country and to provide the basis for deporting those who enter illegally. The Arizona law is not an obstacle to these purposes. I also suspect that the legislative history will be devoid of any indication of congressional intent to oust the state from enforcing immigration laws that track federal requirements.

So I'm cautiously optimistic that the Arizona law will be upheld and I believe that it should be. It would be quite a federal power grab to bar states from protecting their residents from widespread violations of federal immigration law that the federal government is unwilling vigorously to enforce.

However, I recognize that the issue may be less straightforward than my analysis suggests. I'll try to update this analysis as the issue comes into focus and to link to more in-depth and expert analyses as they appear."

http://www.powerlineblog.com/archives/2010/07/026705.php