PHOENIX — The Obama administration is asking a federal judge to void another of Arizona’s laws aimed at illegal immigration.
In legal papers filed in federal court here, Assistant Attorney General Stuart Delery said the state statute, first approved in 2005, is pre-empted by federal law. He told U.S. District Judge Susan Bolton that a federal appellate court, looking at another section of state law on smuggling, concluded it is pre-empted by federal law.
Delery said the same logic applies here.
Attorneys for Gov. Jan Brewer, in their own legal filings Friday, conceded that the Arizona law deals with the same issues as the federal statute. But John Bouma, her outside lawyer, and Joe Sciarrotta, her staff legal counsel, said that does not mean Arizona cannot also enforce laws against smuggling.
They also argued it makes no sense to keep Arizona out of the business of catching human smugglers, especially with the administration recently announcing its own plan to “target and dismantle human-smuggling operations across the Southwest border.”
“Yet the U.S. government in this matter is seeking to prevent Arizona from cooperatively assisting in this effort,” they wrote. And they said that since 2005, “Arizona’s law enforcement officials have served as a critical force multiplier in combating human smuggling.”
Hanging in the balance is a state law that says it is illegal to intentionally engage in human smuggling for profit or commercial purpose.
While originally adopted in 2005, it was altered slightly five years later when the Legislature approved and Brewer signed SB 1070.
Much of SB 1070 has since been struck down after challenges by the Obama administration and various immigrant-rights groups. But this provision remained unresolved and was allowed to take effect.
Since that time, prosecutors have used that law against smugglers.
But an effort by the Maricopa county attorney to charge people with smuggling themselves into the country for profit was struck down.
A judge concluded that Arizona was illegally trying to make a state crime of something the federal government considers a civil offense.
That, however, left the underlying law in place. And now the Obama administration wants to make it go away entirely.
Delery, in his legal pleadings, argued to Bolton that the issue really already has been resolved.
He pointed out the 9th U.S. Circuit Court of Appeals last year voided another provision of SB 1070 that makes it illegal to knowingly transport or harbor those in the country illegally. The same provision also makes it illegal to “encourage or induce the alien to come to or live in Arizona.”
The appellate judges said what Arizona was seeking to criminalize is a form of smuggling.
They said the state cannot do that since Congress has approved its own comprehensive plan to deal with that issue. More to the point, the appellate court said that while Congress had authorized state and local police to make arrests, they never authorized state courts to handle prosecutions.
That ruling was upheld without comment earlier this year by the U.S. Supreme Court.
Delery said this separate smuggling provision is, for all intents and purposes, the same as the already voided law. He said there is only one difference between that statute and the one Arizona wants to enforce: The remaining law requires transportation of an immigrant “for profit or commercial purposes.”
But Brewer’s attorneys said there is no conflict, saying the law has been in effect and enforced for nearly 10 years.
“The United States has not identified any specific instance in which a conflict allegedly occurred,” they wrote. “Instead, the United States relies entirely on the mere possibility that the state and federal laws could be enforced differently.”
They contend the only possible interference the Arizona statute could have with federal law is that someone whom federal officials chose not to prosecute could be convicted of violating the state law. And that, they said, does not mean the state law is preempted.
The judge has set no date to rule on the issue.
