Critics of the Obama administration's decision to sue Arizona over its new law to control illegal immigration accuse the government of overlooking a more obvious target: the dozens of cities that called themselves a "sanctuary" for immigrants.
"Everyone has noticed the hypocrisy of the government going after Arizona and ignoring the sanctuary cities," said Bob Dane, a spokesman for the Federation for American Immigration Reform. "They have it exactly backwards. Arizona is applying federal law, and sanctuary cities are violating it."
Justice Department lawyers on Thursday asked a judge in Phoenix to block Arizona's law from going into effect on the grounds it interferes with federal immigration policy. The law is due to take effect in the coming week.
The Justice Department lawyers say the government wants to catch and deport criminal immigrants, but it does not wish to take custody of hundreds of thousands of illegal immigrants who are otherwise abiding by the law.
Beginning in the 1980s, more than 40 cities and counties adopted ordinances or resolutions declaring they were sanctuaries for immigrants. Police and other city employees were told they should not ask about a person's immigration status, and they should not tell federal agents if they learned a person was here illegally.
More recently, many of these cities have backed away from such policies. But there continues to be debate over whether local officials have a duty to alert federal agents about illegal immigrants.
The Justice Department disputes the contention that its policy is hypocritical. "There is a big difference between a state or locality saying they are not going to use their resources to enforce a federal law, as so-called 'sanctuary' cities have done, and a state passing its own immigration policy that actively interferes with federal law," said Tracy Schmaler, a department spokeswoman.
Kris Kobach, the Kansas law professor who drafted the Arizona law, said he particularly objected to cities that have a policy of freeing criminals who are illegal immigrants without notifying federal immigration officials. "It's pretty clear they are breaking the law. And they are doing it with impunity," he said.
He pointed to a provision Congress added to the immigration laws in 1996. It says state and local agencies and their officials "may not prohibit or in any way restrict" their employees from "sending" information about a person's immigration status to the agency then known as the Immigration and Naturalization Service.
But Congress did not set a penalty for violations. And since then, neither Republican or Democratic administrations have taken legal action to enforce it, according to government officials and immigration lawyers.
Michael Hethmon, a lawyer for the Immigration Reform Law Institute, blames politics and the unusual coalition supporting loose enforcement. "Neither employers nor the ethnic interest groups have wanted these laws enforced," he said. "It's about both immigrants' rights and cheap labor."
But the legal difficulty of enforcing immigration laws goes even further. Supreme Court Justice Antonin Scalia, a conservative, said the Constitution shields states and localities from federal dictates. "Congress cannot compel the states to enact or enforce a federal regulatory program," he said in a 1997 ruling.
Cities with sanctuary policies deny they shield known criminals from immigration agents.
The Los Angeles Police Department has had a policy for more than 30 years that prohibits officers from initiating contact with someone just to determine whether they are in the U.S. legally. LAPD officials have said the policy encourages illegal immigrants who witness crimes to assist police without fear of being deported.
In the last two years, U.S. immigration officials have launched a new alert system that they believe can solve the problem of deporting criminal immigrants. It also has potential to defuse much of the controversy over "sanctuary" cities. Known as "Secure Communities," it permits federal immigration authorities to scan fingerprints of newly arrested suspects. Los Angeles County participates in the program.
Officials at the Immigration and Customs Enforcement downplay the significance of "sanctuary" policies. "None of these municipal laws have yet interfered with our ability to make our streets safer," said Matt Chandler, an agency spokesman.