Behind US v. Arizona: pure politics

If you don't think the lawsuit against Arizona by eric holder is pure politics, read this article. The article was written by Kris Kobach, a law professor and co-author of the Arizona law. He is also running for Kansas Secretary of State.

For more information on Kris Kobach, visit him here...

By KRIS W. KOBACH - New York Post

The Obama administration's lawsuit against the state of Arizona offers a revealing window into the Holder Justice Department. And the picture isn't pretty.

Consider what we learned when Secretary of State Hillary Clinton first let the cat out of the bag and told us about it during an interview in Ecuador. Clinton showed who was sitting in the driver's seat when it came to the Justice Department's decision: "President Obama has spoken out against the law because he thinks that the federal government should be determining immigration policy. And the Justice Department, under his direction, will be bringing a lawsuit against the act."

The key words here are "under his direction." In other words, the White House is calling the shots. The same political calculations that drove Obama to criticize the Arizona law in April also drove the filing of the suit. While that is fine for policy decisions in other executive departments, the litigation decisions of the Justice Department are different. Past administrations -- both Republican and Democratic -- have taken care to insulate these decisions from political forces.

The reasons for doing so are obvious.

The decision to file civil charges or to file a civil lawsuit should be based purely on the strength of the legal case against the defendant, not on politics. And when it comes to the Arizona law, the federal government's case is a weak one.

The Arizona law is a narrow measure that mirrors federal law -- making the Justice Department's preemption argument a difficult one, at best. Because other kinds of pre-emption don't apply, the department can only win if it can show a conflict with federal law. But there is no federal statute that Arizona's law conflicts with. The department's legal filings don't offer any answer to this fundamental problem.

The opinions of the Fourth, Fifth, Eighth, Ninth and Tenth Circuits of the US Court of Appeals (which are all of the circuits that have addressed the issue) also support the authority of Arizona to enact its law.

So do the two relevant opinions of the US Supreme Court. Another obstacle for the Obama administration is the fact that the Justice Department's Office of Legal Counsel in 2002 authored an opinion holding that state police officers have the authority to arrest illegal aliens -- the same authority underlying the Arizona law. Consequently, the department is arguing against its own previous opinion.

On top of that, the department's lawsuit was simply unnecessary. The ACLU and other organizations supporting open borders have already filed five suits, so the issue is being litigated.

This leads to the unavoidable suspicion that the White House ordered the Justice Department to file the suit for purely political reasons.

When one considers the Arizona lawsuit in contrast to last year's Justice Department decision to drop the voter-intimidation case against the New Black Panther Party, the conclusion becomes inescapable. In the Black Panther case, the defendants had failed to answer the charges against them, and all the Department had to do was ask the judge for a default judgment. But the political appointees of the Holder Justice Department came in and ordered the career department attorneys to drop the case.

So the department dropped a slam-dunk case and yet files a suit that is half-court shot. Neither decision makes sense if the law is guiding the department's litigation decisions. But both decisions make perfect sense if political calculations are foremost.

The lawsuit also shows that the Obama administration is devoting substantial department resources to stopping Arizona. The many lengthy filings suggest that many department attorneys are involved. Meanwhile, the flood of illegal-immigration crimes in the border states swells. When I served in the Ashcroft Justice Department in 2001-03, we were doing everything we could to reallocate department personnel and resources to fight those crimes and assist the border-state US Attorneys' office.

In contrast, the Obama administration is scaling back the prosecution of immigration cases and instead using those taxpayer-funded resources to stop a state that is trying to help. As long as politics are allowed to trump the law, such absurdities will only continue.