Notice Grimm's prediction halfway down Breaking Down Feds' Case Against Arizona's Immigration Law | On the Record
Special Guests | Criminal Defense Attorney Bernie Grimm, Sen. Jon Kyl
Wednesday, July 07, 2010
This is a rush transcript from "On the Record," July 6, 2010. This copy may not be in its final form and may be updated.
GRETA VAN SUSTEREN, FOX NEWS HOST: Tonight, President Obama might want to duck because Arizona Governor Jan Brewer is not backing down, because just hours ago, the federal government filed a lawsuit against the state of Arizona and Governor Jan Brewer in her official capacity because of Arizona's illegal immigration law.
Now, the governor fired off this blistering statement! It says in part, "It is wrong that our own federal government is suing the people of Arizona for helping to enforce federal immigration law. As a direct result of failed and inconsistent enforcement, Arizona is under attack from violent Mexican drug and immigrant-smuggling cartels. Now Arizona is under attack in federal court from President Obama and his Department of Justice. Today's filing is nothing more than a massive waste of taxpayer funds. These funds can be better used against violent Mexican cartels than the people of Arizona. The truth is, the Arizona law is both reasonable and constitutional. It mirrors substantially what has been federal law in the United States for many decades."
Now, Governor Brewer goes on to say, "The irony is that President Obama's administration has chosen to sue Arizona for helping to enforce federal immigration law and not sue local governments that have adopted a patchwork of sanctuary policies that directly violate federal law."
Joining us live is criminal defense attorney Bernie Grimm. Nice to see you, Bernie.
BERNIE GRIMM, CRIMINAL DEFENSE ATTORNEY: Hey, Greta.
VAN SUSTEREN: All right, Bernie, finally, the civil lawsuit -- you've read it. I know you've read it. What do you think?
GRIMM: Yes, I mean, I think it's very political. I think a lot of what Governor Brewer says is absolutely right. Now, make no mistake about it. I am hurt to my soul at some of the language of the statute, that after somebody is legally stopped, based on reasonable suspicion, you can essentially arrest them for engaging in -- being an illegal immigrant. Now, I don't know what...
VAN SUSTEREN: Not -- not arrest them!
GRIMM: ... reasonable suspicion is...
VAN SUSTEREN: You can ask them if they're -- if you can ask them, and if it turns out they're viting (ph) the law -- or violating the law, then you can take further...
GRIMM: I know. It requires them to carry papers. And what is this determined by, the color of somebody's skin? But putting that aside, I think a lot of what Governor Brewer says is right. There's a lot of states that either have no law or their law is very passive, and essentially, they get -- they get ignored, where Arizona is trying to step to the front.
And make no mistake about it. Arizona's got the biggest immigration problem, 460,000 illegal immigrants a year. And they're standing up and trying to do something about it, and the government -- the federal government files this document that I think is just very, very political on its face.
VAN SUSTEREN: It doesn't say -- I mean, there's no allegation here, at least as I can read it -- there's some sort of passing language, but there's no fundamental allegation that the statute racially profiles. Is that your reading of this lawsuit?
GRIMM: Yes. That's interesting you said that. I mean, I went over it with a fine-toothed comb, and I thought that count one, after the recitation of facts, would be that the state law passed by the legislature in Arizona violates all sorts of constitutional principles because it engages in overt racial profiling. But it doesn't say that at all. There's some passive references to it, but that's it.
What they're concerned about more is, I think -- in the lawsuit, they said that this Arizona state law interferes with the federal government's ability to enforce and engage in immigration policies. And I agree with Governor Brewer. I think it complements the federal law, I don't think it confounds the federal law.
VAN SUSTEREN: Well, you know, the whole -- I mean, racism is a terrible thing! You know, someone's a racist is a very bad person. But falsely accusing someone of racism is not good, either. I mean, that -- and the state of Arizona -- the people in Arizona and the people of the statute have been under sort of siege in terms of people making those allegations, whether it's the ACLU or President Obama didn't say it precisely, but he said that the statute was misguided. There's been a lot of reference. So I think the fact that it's not in this lawsuit is a time now where it can be cleared up and perhaps maybe end some of the boycotts because that's why there are boycotts.
GRIMM: Yes, no, I think you're right. I think it's good that this lawsuit was filed because now it'll come to a head and it's sort of ripe for a decision now. And perhaps Congress will be jump-started into actually coming through with some legislation that's clear and precise that doesn't put, essentially, police officers in the unenviable position of trying to determine what's sort of illegal immigration and what's not right before their eyes.
VAN SUSTEREN: You know, the lawsuit says that the reason why the feds, essentially -- I'm paraphrasing it -- want total control over this and don't want Arizona to do is because they want to do -- they want to prioritize when arrests are made and when they're not. I was almost scandalized when I read that, as though the federal government is going to decide, OK, we're going to arrest you, but we're not going to arrest you. We're going to arrest you over there, we're not going to arrest you.
You know, it was -- I thought it was -- I actually thought whoever wrote this was some Justice Department lawyer who's been -- had -- has -- sort of an egghead lawyer with his -- with his head in his books and -- and nothing beyond that.
GRIMM: Yes, I mean, no one's ever accused me of being an egghead lawyer, Greta, but at any rate -- the thing is, it's -- yes, the supremacy law -- it's curious. It almost involves supreme arrogance because, you're right -- I mean, is it the federal government decides who's illegally in the country, and the state of Arizona and its citizens and its legislature, its police officers and politicians can't decide that? To me, that sort of confounds the problem. It doesn't make it any clearer.
VAN SUSTEREN: All right, would you ever put your name on this pleading, if you worked for the Justice Department? I know, Bernie, I'm never going to see you working at the Justice Department, but would you ever put your name on this pleading?
GRIMM: Your first premise is absolutely 100 percent right. Your second premise is, No, I wouldn't.
VAN SUSTEREN: OK. One last question. Who's your money on, in terms of looking at this? And it -- you know, it all depends on the judge. I mean, you know, who knows, you know, how the judge is going to rule on this. But who's going to -- who's going to win this one, Governor Brewer or President Obama?
GRIMM: Yes, President Obama is going to win, Greta, because just on page three or page four, it talks about the preemption doctrine, the supremacy clause. You don't need to be afraid of it, but it essentially says the federal government wins all the time.
VAN SUSTEREN: Why do you think they did this? Why do you think the feds filed this suit? I mean, because, you know, looking at the pleading - - and look, I think the pleading is -- is thin, at best. I mean, I was a little bit surprised. And there certainly is none of the racial profiling allegation that was, you know, getting everyone all jazzed up. But why -- why do you think they filed this?
GRIMM: You know, that's a good question because the ACLU has already filed a complaint concerning the racial profiling, and the federal lawsuit doesn't really piggyback it, but it alleges a lot of the same things. I think -- in going back to your last question, I think they want to politicize the debate on this and essentially bring it to a head. And they -- I think they want to let Arizona know, Listen, we don't mind you tracking our law, but we don't -- we do mind you going beyond it, and we're going to smack you down and keep you in place. I think it's saber-rattling by the Obama administration.
VAN SUSTEREN: Except (INAUDIBLE) look very bad if the Obama administration loses this one. Bernie, thank you.
GRIMM: Oh, boy. Yes.
VAN SUSTEREN: Yes, "Oh, boy" is right.
GRIMM: Thanks, Greta.
VAN SUSTEREN: Arizona Senator Jon Kyl joins us on the phone. Good evening, Senator. Senator, your reaction to your state being sued, as well as your governor in her official capacity?
SEN. JON KYL, R-ARIZ. (Via telephone): Well, Greta, thanks. First of all, I agree with your last guest. This is very troublesome because what the federal government, in effect, is saying is, Leave it to us. The state of Arizona has no business being involved in immigration enforcement. Now, if the federal government had been doing its job, Arizona would not have passed a law. But I think everybody concedes the federal government has not yet controlled the border. It has not yet been able to enforce the visa exit-entry system.
And as a result, when it bases a lawsuit on the proposition that the federal government preempts the field, you'd at least like to see that the federal government is doing everything it can to succeed in enforcing its own laws. But it's not doing that, so I find this very troublesome.
It is obviously political. There are already lawsuits -- as your last guest noted, there are already lawsuits filed, so the suit will -- or the statute will be viewed by a court and determined constitutional or not without the federal government having been involved in it. So I just find this very troublesome that we as taxpayers of the federal government having to fund the lawyers to sue the state of Arizona.
VAN SUSTEREN: Well, I tell you one thing. Your governor is not wilting under -- under threat of lawsuit because listen to what she said, which is an interesting point. She said, "The irony is that President Obama's administration has chosen to sue Arizona for helping to enforce federal immigration law and not sue local governments that have adopted a patchwork of sanctuary policies that directly violate federal law."
You know, you can't have -- seems like you can't have it both ways. They should either go after both or go after neither.
KYL: I totally agree with that. The governor has really stood up to this. And let me make another point, and you, as a lawyer, appreciate this. It's very difficult to win a case contending that a statute is facially unconstitutional. What you have to do in legal terms is to prove that under no circumstance can the Arizona law be enforced in a constitutional way. That's the only way that you could win such a facial challenge.
Usually, you wait until the law goes into effect. You see how it's enforced. And then if it turns out that it's being enforced in a way that may allegedly be unconstitutional, you file a lawsuit and the court will decide either that, Yes, it is or is not unconstitutional. But this immediate facial challenge before the law has even gone into effect requires the federal government to meet a very, very high burden of proof. And very seldom are statutes declared unconstitutional on their face, and I think this one will not be.
VAN SUSTEREN: But you know what...
KYL: So you have to say that this is a political exercise, rather than a legal exercise.
VAN SUSTEREN: Well, here's another way to look at it, though, Senator. I may be in the minority on this, but I think one of the advantages of having this done is, look, if this lawsuit is filed without the racial profiling as a specific allegation -- which I think is hugely significant because that has been bandied around. It's been a political hot button. That's the reason why LA has a boycott and other cities have boycotts. And so -- and no one bothered to read the statute. So may now they will take the lead from the president and from the Justice Department and revisit whether to boycott your state because even the federal government isn't making that allegation.
KYL: It's a very good point. We do not want to have a boycott of Arizona. I mean, that's silly. The very people that you're trying to help would probably be most hurt by a boycott. And you're right, the Arizona statute, unlike the federal statute, explicitly prohibits racial profiling. So let's wait and see how the police officers enforce this law. The law says they cannot racially profile. They've been trained in that now. And if they don't racially profile, then what's wrong with the statute? So you're absolutely right. Let's don't contest the statute before it's even gone into effect and the police officers are attempting to enforce it.
VAN SUSTEREN: What's been the reaction of your constituents? Have you had phone calls today since the case was filed or not? Or is it too soon?
KYL: Yes. Yes, they're really upset about it! They're saying, Look, the federal government hasn't done its job. Arizona has therefore tried to step into the breach here. And now the federal government says, Oh, no, you can't try to step in and help us enforce the law because the federal government has preempted the area. Never mind that we haven't done our job.
That's what I said in the beginning. If the federal government had done its job, then you might argue that the state should step aside and let the federal government continue to do what it does. But the federal government has not done its job yet, which is precisely why the state of Arizona passed this law and the governor signed it in the first place.
So I just find this a very distressing thing. It's a political exercise, clearly, to try to appeal to that part of the president's base that doesn't think he's pressing hard enough on the immigration issue. And my guess is that the statute will not be held facially unconstitutional.
VAN SUSTEREN: Well, I think it would be very helpful if the whole issue of racial profiling -- and racial profiling is wrong, it's bad, it's horrible, but I wish that (INAUDIBLE) put out the fires (INAUDIBLE) some leadership in our country, those who have made those allegation, if at least now we can sort of lay that to rest as to this statute. It doesn't mean racism doesn't exist in this nation, but at least as to that, I think it'd behoove our federal government to take a little more leadership on that because it's been very painful.
KYL: Yes. I totally agree with you, Greta. Let's get the -- you know, let's get down to the border. Let's enforce the law. Let's secure the border. It can be done. It requires some resources. it requires some willpower, but it can be done. And in the meantime, let's make sure that employers don't hire people who are not eligible to be hired -- that is to say, who are not in the country legally. That's another thing that the Arizona statute of three years ago have established and the federal government is challenging that in court, as well, which I find very, very ironic. Go ahead.
VAN SUSTEREN: I was just going to say, Senator, I'm sorry, I guess I lost you for a second, but I do thank you, Senator, very much -- thank you for joining us, sir.
KYL: Thank you, Greta.
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