Drudge ran a classic headline today regarding the decision of the Department of Homeland Security to suspend all existing cooperation agreements with Arizona in light of the Supreme Court’s unanimous upholding of §2(B), permitting authorities to check the immigration status of persons otherwise lawfully detained:

While it is true that the feds want to undermine Arizona as completely as possible, as they always have since SB 1070 was passed, I think the more correct headline should have been:


Keep in mind the Supreme Court’s holding.  The Court unanimously held that there was nothing unlawful on its face with §2(B), and based on what currently was known, it could not be presumed that the law would be applied in a manner which would conflict with federal law (emphasis added):

However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive pre- emption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives.

The Supreme Court addressed the issue in good faith, based on an understanding that merely reporting an illegal to the feds was not contrary to federal law or its objectives.[*]

So what did Big Sis do?  Within hours of the Supreme Court’s decision she changed the objectives.

Now it is contrary to DHS’s objectives for Arizona to report illegals on a more frequent basis once §2(B) takes effect.  That’s why the cooperation agreements were suspended.

Voila! The feds create a potential conflict based on conduct the Supreme Court held — based on the facts existing hours earlier — did not create a conflict.

Whether this ploy will work remains to be seen, but I expect it to be argued if and when there is more litigation.

The suspension of cooperation agreements was a slap in the face not only of Arizona, but of the Supreme Court as well.


* I should note that Justice Alito in his partial dissent rejected the notion that preemption could arise from a conflict with “a federal agency’s current enforcement priorities.”