By Michael Bryan
All you need to know about the amicus brief filed in support of Arizona by Michigan Attorney General Michael Cox on behalf of nine states (including Michigan, Florida, and Pennsylvania) and the Northern Mariana Islands is that Michael Cox is running for Governor of Michigan… as a Republican. So is Florida Attorney General Bill McCollum. And so is Pennsylvania Attorney General Tom Corbett.
Imagine that. Complete coincidence, I'm sure.
The brief itself offers no insights to the court and barely makes a legal argument – its purpose is not to aid the court with additional information or viewpoints, it is only to allow Michael Cox and his pack of wanna-be Governors to show voters how committed they are to getting tough on immigration and to bringing SB1070-style legislation to their own states.
To illustrate just how devoid of original thought the amicus brief is, just look at the table of contents: the "Argument" section begins with "1. Senate Bill 1070 does not constitute a regulation of immigration". Seriously. It doesn't even pass the giggle test.
Cox's argument is that SB1070 does nothing but cooperatively enforce existing federal law, which is what the drafters are always claiming – when they are not bragging about doing the job the feds won't, or forcing the federal government's hand on immigration. It's rather disappointing that an amicus brief which purports to represent the view of 9 states and a territory can't even get beyond the discredited political talking points of Arizona's most boneheaded GOP leaders.
I was sincerely hoping that the brief would lay out a constitutional or historical examination of the limits and traditions of state power in immigration enforcement. I was hoping I would learn something. I was rather disappointed.
Instead, there is nothing here other than a straw man refutation of the federal suit's preemption argument as it relates to the power of local officers to enforce federal law (which the federal suit never alleged in the first place) and the immigration status verification procedures required by SB1070. The amicis argue that the Federal Government hasn't any discretion but to respond to any state or local authorities' requests to verify the immigration status of any person in their jurisdiction. Therefore, the requirement that any person arrested in Arizona have their immigration status verified before release only demands that the feds do what they are required to do upon request by federal law.
That argument may be legally colorable, though without any nuance, but the amicis manifestly fail to address the large and specific number of other ways that SB1070 conflicts with federal immigration law that the federal suit alleges, nor does it address the transgression upon federal authority over foreign policy and trade, nor that SB1070 falls afoul the Commerce Clause. It's as if the authors got about 1/10th of the way through writing the brief and just gave up and turned in their unfinished homework.
No, the much-ballyhooed 9 state amicus brief isn't really a proper amicus brief at all – it's campaign lit for three GOP Governor wanna-bes. The court should reject this amicus brief because it doesn't actually seek to assist the court or express the viewpoints of the listed states – it only seeks to assist three ambitious and opportunistic Attorneys General into their respective Governor's mansions.