I find it reassuring to learn that the federal government has enough lawyers worth their salt sufficient to draft a complaint that attacks Arizona's immigration law on what seems to be a legitimate legal basis (which is not to say a valid one). The complaint seems a bit chatty to me as complaints go, and there is more in the way of unnecessary editorial comment in it than I'm used to, but it contains no blatant claims of racism or unutterable evil on the part of this state, and this is refreshing in these loudly self-righteous times. It may even be that I find it unduly prolix mostly because I'm an older lawyer. The complaints I read drafted by younger colleagues are often noisy, exclamatory things, and perhaps that's the way they're being taught. I'm used to notice pleading, and hold I think the well-grounded belief that no judge is going to be swayed by a complaint of all things, and so rhetorical flourishes at that stage of pleading is silly chest-pounding.
Federal preemption and the Supremacy Clause won't set hearts racing or flags and placards waiving, and perhaps worse yet for some don't create much opportunity for self-congratulatory posturing, but they raise serious issues worthy of judicial consideration. Is immigration law a peculiarly federal concern? Would the intrusion of the states in this area of law cause chaos, a multiplicity of possibly inconsistent immigration systems, confusion in law enforcement and among those sincerely interested in obtaining citizenship, jurisdictional issues? These are good legal questions.
A complicating factor here may be the fact that the Arizona law seems to incorporate the federal law by reference. This would seem to mitigate claims that confusion results in this particular case. Also interesting will be the extent to which the federal government's apparent failure to enforce federal law on this issue will be a factor. What can be said to be preempted by federal law where federal law is not applied, for any reason?
One wonders if this is ultimately a win-win situation for Arizona and those that sympathize with its stance. It may be that even if its law is struck down (and the likelihood is that this won't culminate at the District Court level) it will have compelled the enforcement of the federal law, or perhaps reforms in the law. One thing is certain, I think--this controversy is in the courts now, and so we may at least hear less from the assorted pundits, politicians and preachers of the left and right as a result. And that can only be considered a good thing.