Attorneys on Thursday filed the first lawsuit challenging the constitutionality of a controversial new Arizona law that makes it a crime in the state to lack proper immigration papers and requires local police to determine whether people are in the country legally.
The federal lawsuit, filed by the National Coalition of Latino Clergy and Christian Leaders, alleged that the law improperly intruded into the federal government's ability to regulate immigration. The complaint seeks an injunction to keep the law, signed last week by Arizona Gov. Jan Brewer, from going into effect this summer.
"The national clergy felt it was time to move immediately," attorney Ben Miranda said at a news conference outside the federal courthouse in Phoenix. "There's a need to calm fears that are out there."
The groups that overturned Proposition 187, California's 1994 anti-illegal-immigrant initiative, in federal court were scheduled to announce later Thursday their intentions to sue to block the Arizona law.
The American Civil Liberties Union, Mexican American Legal Defense and Educational Fund and the National Immigration Law Center also were set to announce in Phoenix on Thursday plans to challenge the measure. U.S. Attorney General Eric Holder said this week that he was considering a possible legal challenge to the law.
The law, which is set to take effect in midsummer, makes it a crime in Arizona for illegal migrants to be in the state, requires police to check for evidence of legal status and bars people from hiring or soliciting work off the streets.
The key legal issue, according to lawyers on both sides, will be one that also was at the center of the court fight over Proposition 187 in California — whether the state law interferes with the federal government's duty to handle immigration.
"The entire country has been galvanized," said Marielena Hincapie, executive director of the National Immigration Law Center. "People within the legal community are trying to figure out what we can do. ... We have seen an enormous amount of energy responding to this."
Attorneys who successfully challenged laws against illegal immigrants in California, Texas and elsewhere argue that the Arizona law faces a similar fate because of the federal/state issue. Immigrant advocates also argue that the law could violate guarantees of equal protection if selectively enforced against certain ethnic groups.
"The Arizona law is doomed to the dustbin of other unconstitutional efforts by local government to regulate immigration, which is a uniquely federal function," said Peter Schey, a Los Angeles attorney who led successful challenges to the 1975 Texas law denying illegal migrant children free public schooling and the 1994 California initiative that would have barred public services to illegal migrants. Schey said he also planned to file a separate lawsuit.
But the attorney who helped write the Arizona law said he carefully crafted the measure to avoid those constitutional issues.
Kris Kobach, a University of Missouri-Kansas City law professor who handled immigration law and border security under U.S. Attorney General John Ashcroft during the Bush administration, said the law does not seek to regulate immigration but merely adds state penalties for what are already federal crimes.
Under the legal doctrine of "concurrent enforcement," he said, states are allowed to ban what is already prohibited by federal law. As an example, he said, the courts have upheld efforts by Arizona, California and other states to enact sanctions against employers who hire illegal migrants.
Kobach, who is running as a Republican candidate for Kansas secretary of state, also dismissed claims that the bill will result in racial profiling. He said he took care to include an explicit ban on using "race, color or national origin" as the sole basis for stopping someone to ask for papers.
"I anticipate that anyone who challenges the law will throw everything but the kitchen sink at this to see if it will stick," Kobach said. "But this is consistent with federal law."
Indeed, immigrant advocates raise several legal questions. The portion of the law that prohibits laborers from soliciting work in public places is particularly vulnerable, said Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund.
The organization has successfully challenged similar laws in Arizona and California. In 2008, a federal judge ruled that an Arizona town could not enforce an anti-solicitation ordinance that advocates said infringed upon the free speech rights of day workers.
In addition, there probably will be due-process claims because police officers won't know who would be eligible for immigration relief, Saenz said. Many arrested won't have the opportunity to make their claims in U.S. Immigration Court.
"There are a lot of people who are going to be arrested and swept into this dragnet who have every right to be in this country," he said.
This story was reported from Phoenix and Los Angeles. (c) 2010, Los Angeles Times. Distributed by McClatchy-Tribune Information Services.