News

Jul 22, 2010

After all the shouting, all the posturing, and all the debate over who should enforce the nation's immigration laws, the United States v. Gov. Janice K. Brewer is finally coming to court on Thursday.

Justice Department lawyers from Washington are expected to march into the federal courthouse in Phoenix and argue that Arizona's crackdown on illegal immigration should be stopped. Lawyers for the state will insist, just as forcefully, that it must continue.

Itis the first court hearing in the Obama administration's lawsuit against Arizona's new immigration law, a case that sets up a rare clash between the U.S. Department of Justice and an individual state over one of the nation's most divisive political issues.At issue is whether a judge will grant a preliminary injunction to stop the law -- which gives police the power to question people they have "reasonable suspicion" are illegal immigrants -- from taking effect on July 29 while the lawsuit proceeds.

It is unclear if the judge will rule during Thursday's hearing, scheduled for 1:30 p.m. (4:30 p.m. in Washington). But the day's events in and around the glass-and-white iron courthouse, named for former U.S. Supreme Court Justice Sandra Day O'Connor, will likely have an angry subtext that reflects the political debate over how to handle the nation's estimated 12 million illegal immigrants.

Court officials said protests are expected outside, where demonstrators during a hearing last week in another lawsuit over the Arizona law condemned the measure as racist. Counter-demonstrators defended the law as an expression of state sovereignty.

Even the court docket reflected the divide. Nine states with Republican attorneys general have filed an unusual brief in support of Arizona and against the Justice Department lawsuit, which the government filed July 6 in an effort to have the Arizona law declared unconstitutional.

"It is appalling to see President Obama use taxpayer dollars to stop a state's efforts to protect its own borders,'' Michigan Attorney General Mike Cox, who led the effort, said in an interview.

The stakes are perhaps most evident in the high-powered legal talent that will be on display. Listed in the docket as the lead lawyer for the government is Edwin S. Kneedler, a 35-year Justice Department veteran who is something of a legal legend. Kneedler, the U.S. deputy solicitor general, argued his 100th case before the Supreme Court in 2008, a rare milestone that drew equally rare congratulations from Chief Justice John G. Roberts Jr.

Kneedler, 64, has been in the thick of other recent legal controversies. Last year, he argued the government's position on whether white New Haven, Conn., firefighters were unfairly denied promotions because of their race -- a case that became an issue in the confirmation hearings for Supreme Court Justice Sonia Sotomayor.

Standing across the courtroom will be John J. Bouma, the lawyer for Brewer, Arizona's Republican governor. He is a leading Phoenix attorney who is so identified with Arizona's southwestern ways that that a 2000 profile of him in The American Lawyer magazine was titled "The Valley of the Sun King.''

An adviser to two previous Republican governors, Bouma, 73, is used to taking on high-ranking Democrats: he represented Republican state legislators who sued then-Arizona governor Janet Napolitano (now Department of Homeland Security secretary) over her use of the line-item veto.

Even the state's representation was the subject of a political fight. At Brewer's insistence, Democratic state Attorney General Terry Goddard, whose office normally defends the state in lawsuits, withdrew from the legal team. An opponent of the Arizona immigration law, he is running against Brewer for governor this year.

Behind the bench will be U.S. District Judge Susan Bolton, who is also hearing the six other lawsuits filed against the Arizona law. A former Arizona state court judge, she was nominated for the federal bench by Democratic President Bill Clinton. But legal observers say Bolton is hard to pigeonhole ideologically: her nomination also won strong praise from Sen. Jon Kyl (R-Az), who said at her 2000 Senate confirmation hearing that she was fair and "highly thought of.''

At that same hearing, Bolton made clear that she carefully weighs arguments on both sides. She said judges have a limited role and should only declare statutes unconstitutional in "rare circumstances.''

In seeking the injunction stopping the law, Justice Department lawyers are expected to cite the legal doctrine of "preemption," which is based on the Constitution's supremacy clause and says federal law trumps state statutes. Because the federal government has "preeminent authority to regulate immigration matters," the government's lawsuit argues, the Arizona law must be struck down.

Federal officials also say the law would disrupt immigration enforcement and would lead to police harassment of those who cannot prove their lawful status.

Arizona lawyers are expected to argue that states have a role in enforcing immigration law and that Arizona must address the infusion of illegal immigrants into the state because the federal government has declined to do so.

Jonathan Benner, a partner at Reed Smith in the District who has argued numerous preemption cases, said the Justice Department has "a strong case for an injunction . . . the preemption argument is very strong.''

But he said other factors, such as the Arizona's law's popularity among many state residents, could play a role. "Judges live there, they are part of that community,'' he said. "You're really playing an away game if you're the government trying to advance the federal position.''

Arguments are also scheduled for Thursday morning in a lawsuit filed against the Arizona law by leading civil rights groups, including the American Civil Liberties Union.