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US challenges to state immigration laws intensify

Statutes under review for possible suits

By Jerry Markon
Washington Post / September 30, 2011

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WASHINGTON - The Obama administration is escalating its crackdown on tough immigration laws, with lawyers reviewing four new state statutes to determine whether the federal government will take the extraordinary step of challenging the measures in court.

Justice Department attorneys have sued Arizona and Alabama, where a federal judge on Wednesday allowed key parts of that state’s immigration law to take effect but blocked other provisions. Federal lawyers are talking to Utah officials about a third possible lawsuit and are considering legal challenges in Georgia, Indiana, and South Carolina, according to court documents and government officials.

The level of federal intervention is highly unusual, legal experts said, especially because civil rights groups have already sued most of those states. Typically, the government files briefs or seeks to intervene in other lawsuits filed against state statutes.

“I don’t recall any time in history that the Justice Department has so aggressively challenged state laws,’’ said Jonathan Turley, a constitutional law expert at George Washington University Law School.

The legal skirmishing was triggered by last year’s Arizona law, which requires that police check immigration status if they stop someone while enforcing other laws. Amid a fierce national debate, a Justice Department lawsuit led federal courts to block that measure’s most contested provisions, but similar laws were approved in recent months in Alabama, Utah, Georgia, Indiana, and South Carolina. At least 17 other states have considered such measures this year.

Although Wednesday’s ruling in Alabama was something of a setback, the Justice Department and civil rights groups have been on a winning streak. The ACLU and other groups have obtained rulings temporarily blocking all or key parts of immigration laws in Utah, Georgia, and Indiana, with Republican- and Democrat-appointed judges blasting the measures as devoid of due process protections or for targeting illegal immigrants.

The administration is under pressure from some quarters to intervene in those states, as well as South Carolina, where a new immigration law is set to take effect Jan. 1. Civil rights groups have been lobbying the White House and Justice and State departments, according to people familiar with the effort, and the ACLU is circulating an online petition calling for federal lawsuits. More than 23,000 people have signed.

The legal maneuvering comes as immigration is flaring as a political issue, with many conservatives and GOP presidential candidates calling for a hard line on the nation’s estimated 12 million illegal immigrants.

Conservatives have criticized the Obama administration for suing Arizona and Alabama, and some legal observers said they detect political motives in the administration’s additional legal steps. The White House and Obama’s reelection campaign have been trying to rekindle excitement among Hispanic voters, many of whom have been disappointed over his immigration policies.

“It suggests that they are waiting to test the political winds and see if this is good or bad for the Obama administration,’’ said Kris Kobach, a former senior Justice Department official in the George W. Bush administration who is helping Arizona and Alabama defend the lawsuits.

Justice officials have denied any political motives and said they are proceeding based on the facts and the law. Obama and Attorney General Eric H. Holder Jr. have been critical of the state measures, with the president recently saying, “We can’t have 50 different immigration laws around the country.’’

Xochitl Hinojosa, a Justice Department spokeswoman, said lawyers are reviewing the Utah, Indiana, Georgia, and South Carolina laws and the “legal principles’’ established in the Arizona case. “Based on that review and applying those principles, the United States will decide whether and when to bring suit challenging particular state laws,’’ Hinojosa said.

Hovering over the debate is the possible involvement of the Supreme Court. The US Court of Appeals for the Ninth Circuit ruled in April that the most contested parts of Arizona’s immigration law will remain blocked. They include allowing for warrantless arrests of suspected illegal immigrants and criminalizing the failure of immigrants to carry registration papers.

Governor Jan Brewer of Arizona, a Republican, is seeking Supreme Court review, and the court could decide to hear the case this term. That would mean a decision before the 2012 presidential election.

The state statutes, signed into law over the past five months, include a range of provisions, including authorizing police to question people’s immigration status, limiting the ability of immigrants to use certain forms of identification, and criminalizing the harboring or transport of illegal immigrants.