Memo from 2002 could complicate challenge of Arizona immigration law

Memo from 2002 could complicate challenge of Arizona immigration law

By Jerry Markon
Washington Post Staff Writer
Tuesday, May 18, 2010

In the legal battle over Arizona's new immigration law, an ironic subtext has emerged: whether a Bush-era legal opinion complicates a potential Obama administration lawsuit against Arizona.

The document, written in 2002 by the Justice Department's Office of Legal Counsel, concluded that state police officers have "inherent power" to arrest undocumented immigrants for violating federal law. It was issued by Jay S. Bybee, who also helped write controversial memos from the same era that sanctioned harsh interrogation of terrorism suspects.

The author of the Arizona law -- which has drawn strong opposition from top Obama administration officials -- has cited the authority granted in the 2002 memo as a basis for the legislation. The Obama administration has not withdrawn the memo, and some backers of the Arizona law said Monday that because it remains in place, a Justice Department lawsuit against Arizona would be awkward at best.

"The Justice Department's official position as of now is that local law enforcement has the inherent authority to enforce federal immigration law," said Robert Driscoll, a former Justice Department Civil Rights Division official in the George W. Bush administration who represents an Arizona sheriff known for aggressive immigration enforcement. "How can you blame someone for exercising authority that the department says they have?"

The Arizona law, signed by Gov. Jan Brewer (R) last month, makes the "willful failure" to carry immigration documents a crime and empowers police to question anyone if authorities have a "reasonable suspicion" the person is an illegal immigrant. It has drawn words of condemnation from President Obama and intense opposition from civil rights groups, who on Monday filed what they said was the fifth federal lawsuit over the legislation.

Attorney General Eric H. Holder Jr. has said the department is considering a lawsuit against Arizona, and Civil Rights Division lawyers have been studying the law and consulting with some civil rights groups.

"The Civil Rights Division has been working around the clock," said one outside lawyer who has spoken to Justice Department officials. The lawyer spoke on the condition of anonymity because the contacts are not public. "They have a lot of attorneys on it, and they're taking a really hard look at filing their own lawsuit or intervening." Justice Department officials declined to comment Monday beyond saying they are continuing to review the government's legal options.

The 2002 opinion, known as the "inherent authority" memo, reversed a 1996 Office of Legal Counsel opinion from the Clinton administration. "This Office's 1996 advice that federal law precludes state police from arresting aliens on the basis of civil deportability was mistaken," says the 2002 memo, which was released publicly in redacted form in 2005 after civil rights groups sued to obtain it.

Office of Legal Counsel documents do not have the force of law but carry great weight within the executive branch and are considered to be the Justice Department's official position on a legal or constitutional issue.

Cecillia Wang, managing attorney of the ACLU Immigrants' Rights Project -- which filed Monday's lawsuit in federal court in Phoenix along with the NAACP, the National Immigration Law Center and other groups -- said the 2002 memo would not present an obstacle to a Justice Department lawsuit. She said the power that the Arizona law gives to police "goes far beyond" the basic arrest authority cited in the memo.

But Wang renewed the ACLU's call for the Obama Justice Department to withdraw the 2002 memo, which she called legally incorrect. "The fact that this memo is lurking out there gives cover and comfort to people in Arizona and other states who want to pass these overbroad and extraordinary anti-immigration measures," she said.

9 Comments

4 years 10 weeks ago, 8:46 PM

zx12rmike

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Shouldn't the people of Kali be suing the state for NOT enforcing the laws we already have?

"We cannot defend freedom abroad by deserting it at home" Thomas Jefferson
4 years 10 weeks ago, 9:15 PM

Pkato

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Notice this dipshit's

words at the end:

"The fact that this memo is lurking out there gives cover and comfort to people in Arizona and other states who want to pass these overbroad and extraordinary anti-immigration measures," she said.

I have not read, heard or spoken to anyone who is against LEGAL immigration, only ILLEGAL immigration. She failed to mention that the law is addressing ILLEGAL ALIENS. Shit man, this administration can't even come to grips with ILLEGAL ALIENS as a term, how can they seriously address the problem...just like OVERSEAS CONTINGENCY OPERATIONS.

Obama sucks ass

Patrolman Kato
Firearms stand next in importance to the Constitution itself.
They are the American people's liberty teeth and keystone
under independence. -- George Washington
4 years 10 weeks ago, 9:28 PM

luckybychoice

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well since the 70s

if you tried to wander around without ID and were questioned by police,you had some explaining to do and thats all there was to it,you better have some ID,do these idiots think that people just wander around in condition white,waking up to a new world everyday....oh wait...yes they do.fuckin liberals,long as we do what they think is best huh?

i tried being reasonable,i didn't like it, NRA LIFE MEMBER,USMC VETERAN
4 years 10 weeks ago, 2:44 AM

Lyle Hutchins 1

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Identification.

In your State, (what ever st. you live in) Do you not, have to produce valid ID to buy cigaretts, alcohol, go into a club, ect. ect.? (Age verication ID understood) All are asked to produce ID when using a credit card, auto purchase, banking, buying groceries
I carry 5 Licenses. What the problem here is, are you ready 4 this?? Here it COMES!!
The f&%$() Mexicans can't get an ID card, a lot of them don't know who their DADDY is! Let alone understand ID! I had 2 get that out_____________ feel better now!
They know they are here illeagly, and afraid to go get proper Papers. They need to go back home apply for citizenship, come in the Front Door. Go to the Imagration office, ect. ect.
NOW, is their any other problems you want me to fix?
Lyle
Shoot Um all, tell God they died! : )

Lyle Hutchinson
4 years 10 weeks ago, 2:53 AM

CharlesW

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Lyle Praise God

and Pass the Ammunition

A little rebellion is good medicine for the government Thomas Jefferson
4 years 10 weeks ago, 3:17 AM

Lyle Hutchins 1

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I get so Pissed

"I GET SO PISSED"!!!!!!
Lyle

Lyle Hutchinson
4 years 10 weeks ago, 6:04 AM

photobear6

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why in the fuck is the NAACP involved in this? All this is a law (not even a new law) saying if you get stopped for something you must have the proper ID or Papers. If I go to Ireland, europe china korea or even Canada I have to have something on me showing who I am usually a passport. I don't think and I could be wrong on this, but I don't think there are a whole lotta black Mexicans coming across the border and even if there is all they are asking for is a ID. These lawyers do more harm to this country than anything else. They all start all start whinning about being "Profiled" well get over it because it works. Look at the profile for a mass murder they start looking for a white male mid years with a educated back ground, guess what they are 99% right. Okay my morning rant is over.

America is not at war. The U.S. Military is at war. America is at the Mall. If you don't stand behind our troops, PLEASE feel free to stand in front of them!
4 years 10 weeks ago, 8:08 AM

samD

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I now have to show my Passport to get back into my own country from Mexico. I don't go there anymore, because I can't stand the smell of the sewage!

4 years 10 weeks ago, 9:24 AM

HampsterW

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doesn't one need to be a legal citizen in order to enjoy said civil rights?
This whole issue is fucking insane.....EXCUSE ME while I attempt to lower
my blood pressure....

Change you can truly believe in comes from the barrel of a gun---------------------------------------------------------------------------------Ron Paul 2012----Vote the bastards out!---------------------------------
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Posted by: samD
4 years 10 weeks ago
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