A while back I wrote about Arizona’s new immigration law, which will come into force July 29, 2010. However, on Tuesday, I heard that the United States government filed a lawsuit against the State of Arizona over the immigration law, arguing that it is meant to supersede the federal government's authority under the US Constitution to regulate immigration. The federal government is also trying to prevent other states from thinking they can do the same. The government has also requested a preliminary injunction to delay the coming into force of the law, arguing that the law’s operation will cause “irreparable harm”.

So the legal battle stems from the US federal government’s right and responsibility to enact and enforce immigration law. The lawsuit is based on the preemption doctrine adopted by the Supreme Court under the constitution’s supremacy clause, which states that certain matters are of such federal character, as opposed to local or state, that only the federal government can act on them. Thus, federal laws take precedence over state laws. As such, a state may not pass a law that is inconsistent with the federal law.

It seems US legal analysts are split over the possible outcomes of this case. For example, Robert Pugsley, professor of law at Southwestern Law School, has stated:

I agree with the argument that the federal government’s authority under the preemption clause will prevail over the Arizona state law … Otherwise we could have 50 states writing immigration laws and it would result in the chaos that the preemption clause was specifically created to prevent.”

However, Hector Chichoni, partner at the national law firm Epstein Becker Green states:

There is good basis to believe the Department of Justice lawsuit may fail … The Arizona law does not necessarily preempt the Federal government; rather [it] sets the state and local government as enforcers of what is already available, and on certain cases, mandatory under immigration law.”

Looking at what has happened in Canada, I tend to agree with the latter statement.

Of course I am speaking about the Canada-Quebec immigration agreements. In the 1960s, Quebec pressured the federal government for more rights to govern immigration issues in the province, and to this day, Quebec’s government continues to want more rights. The reasoning behind the movement is that Quebec is distinct and therefore needs a special status and autonomy to determine who settles in the province.

Four immigration agreements have been signed since:

• The Lang-Cloutier Agreement of 1971
• The Andras-Bienvenue Agreement of 1975
• The Cullen-Couture Agreement of 1979
• The McDougall-Gagnon-Tremblay Agreement, known as the Canada-Quebec Accord of 1991

The 1991 agreement is still in effect today.

Each new agreement gave the province additional powers and autonomy in the field of immigration. Through these agreements, Quebec acquired the right to select, recruit, admit and settle new temporary and permanent immigrants in the province. These agreements have also impeded, usurped and undermined the Canadian government’s constitutional right to exclusively regulate immigration. But it happened nonetheless.

Applying the above to Arizona’s situation, the state might consider itself in a “distinct” situation. Being a border state means it has a greater number of illegal immigrants and must handle the resulting consequences; thus it might claim “legitimate concerns” about illegal immigration.

Of course, whether the courts would accept such an argument remains to be seen. Quebec appears to have a stronger claim to “distinctness” than Arizona, given its majority French-speaking population and Canada’s recognition of French as an official language. The United States, on the other hand, steadfastly refuses to officially recognize languages other than English, despite estimates of more than 11 percent of the population speaking Spanish as their primary language. Approximately 20 percent of the population of Arizona speaks Spanish primarily.

Whatever the case, it seems clear that people across the country and beyond are watching closely.

The case is United States of America v. State of Arizona et al; Case No. 10-cv-1413 in U.S. District Court for the District of Arizona.