The gravamen of the DOJ’s case against Arizona

(See Tim W.’s response to this entry.)

The Obama administration may still be bluffing about suing Arizona over its anti-illegal alien law. If the promised suit does proceed, however, one of its key arguments, as reported in the Washington Post, will be as follows. The law should be overturned, not because it violates the Constitution, and not because it conflicts with federal law, but because it will actually require federal immigration agencies to deport a very large number of illegal aliens, and this, according to anonymous Justice Department officials paraphrased in the Post, “would place an undue burden on [the federal government’s] ability to enforce immigration laws nationwide.” In other words, by arresting lots of deportable illegal aliens and handing them over to the federal government for deportation and thus putting the feds in a position where they have no choice but to enforce federal immigration laws, the Arizona law would interfere in the federal government’s ability to enforce federal immigration laws. A state law that will make the federal government enforce its laws is an undue burden on the federal government, and therefore that state law is unlawful, and therefore it must be thrown out. Surreal, huh?

I have a name for this novel legal argument: the Empty Suit Plea. According to the Empty Suit Plea, to require federal officials to do their job instead of allowing them to keep going through the motions of doing their job, is an unlawful imposition on them, and cannot be permitted. However, given the racial disposition of Obama and his Attorney General, maybe we should call it the Black Empty Suit Plea.

Here’s the relevant passage from the Post :

[D]epartment lawyers have been preparing their case, said the sources, who spoke on condition of anonymity because the government has not announced its plans. The filing is expected to include declarations from other U.S. agencies saying that the Arizona law would place a undue burden on their ability to enforce immigration laws nationwide, because Arizona police are expected to refer so many illegal immigrants to federal authorities.

Here is Prof. Joseph Kay’s 2008 article at VFR on “The Black Empty Suit.” Here, here, and here are follow-ups.

Posted by Lawrence Auster at July 06, 2010 02:27 PM | Send