The Federal Government's Case Against Arizona's Immigration Law


HILLARY CLINTON, U.S. SECRETARY OF STATE: President Obama has spoken out against the law because he thinks that the federal government should be determining immigration policy. And the Justice Department under his direction will be bringing a lawsuit against the act.

MARK TONER, STATE DEPARTMENT SPOKESMAN: The secretary's words stand for themselves. And again, I just defer to the Department of Justice on what next steps are legally on this.

GOV. JAN BREWER, R-ARIZ.: They're going to sue us without coming straight to the state of Arizona and notifying me personally. It's outrageous and it's unacceptable.


BRET BAIER, "SPECIAL REPORT" HOST: Well, Secretary Clinton talked about this, as we showed you last night on the panel, talked about it ten days ago in an interview with Ecuador TV, that the administration was going to sue Arizona over its immigration law.

The White House said go talk to Justice. The State Department said go talk to Justice. Nothing. And then finally today, privately, off-camera, administration officials say, in fact, they are going to sue Arizona over its immigration law.

What about this. We have the panel here, but I want to show you a recent poll. Should the Justice Department challenge legality of the Arizona law? And 56 percent say no, 26 percent say yes, according to Rasmussen.

And here's the Presidential Daily Tracking Poll just out June 15 to the 17. The president's approval is at 41 percent according to Rasmussen.

Now let's bring in our panel, Steve Hayes, senior writer for the Weekly Standard, Juan Williams, news analyst for National Public Radio, and syndicated columnist Charles Krauthammer.

Boy, talk about a roll-out, Steve?

STEVE HAYES, SENIOR WRITER, THE WEEKLY STANDARD: Yeah, I don't think this is the way they had it planned, right? What I found most interesting in the developments today was the fact that you have this confirmation that Justice is in fact going to sue. It came a couple different times and a couple different ways.

But then one official who talked to Fox News about this said Justice was going to sue and they made the determinant they were going to sue, but they were going back over the case to determine whether they had enough information to bring strong case, to bring a substantial suit. That tells you everything you need to know. This the about politics, not about law. The Obama administration I think wants to gin up its base in 2010 and looking forward to 2012. This is a good way to do it.

BAIER: Juan, Arizona Governor Jan Brewer is livid. She said the White House told her that they would go to Arizona, White House officials, talk to her, get these National Guard troops on the border. She says that hasn't happened yet, and now she hears about a lawsuit from interview with Ecuador TV ten days ago.

JUAN WILLIAMS, NEWS ANALYST, NATIONAL PUBLIC RADIO: Clearly people have gone to Arizona, and people know what is going on, and steps have been taken.

BAIER: But they haven't talked to her.

WILLIAMS: She has been in the White House and talked to the president.

BAIER: But when she was there, she said he told her they were going to go to Arizona and discuss moving forward and getting these troops to the border. And she says it has not happened as of yet.

WILLIAMS: I don't know what -- she is on the ground, I will grant her that. But from what I understand, there are people who have gone to Arizona, people who have looked over this law. And the understanding is that clearly Arizona has impinged on a constitutional responsibility given to the federal government, which is to control our borders and to handle immigration issues. And that is the basis of any legal challenge that the administration hopes to mount in the courts.

And I think the courts are likely to side with the administration.

BAIER: Wouldn't you call the governor and say we're going to file suit?

WILLIAMS: It might be polite. But as Steve said, I don't think the rollout is what they intended. I think this has clearly been a mish mash.

But the big point here is, is it political? Is it a political or a legal challenge? I think it happens to be both. I think the orders came from the White House in this case and we know about the history of people saying they hadn't read the law before they were upset with the law. But what this is about is there is a legal basis for the challenge based on the constitutionality, and secondly it benefits the White House politically.

BAIER: So what about that, Charles? We heard from the president that the Justice Department would review this law and that it would really be the attorney general's call whether to move forward with a lawsuit. The say Secretary Clinton phrased was the president has directed the Justice Department to file suit against Arizona.

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: But I'm not sure that it was over the objections of anybody in Justice. I think ideologically the president and Eric Holder are on the same page and they decided very early on, in Holder's case before he read the law, that he was against it.

And I welcome the challenge in the court. I support the law with some trepidation and hope it's enforced the way it’s intended to be. But I support it and I want it the courts to decide if it's constitutional.

And if it is, if this case wins in the Supreme Court, where I expect it will end up eventually, it will be extremely important. It will cause similar laws in states and localities, and secondly it will be a standing rebuke to the federal government for its scandalous and deliberate dereliction of duty of enforcing immigration laws.

I think it will be an important day in the fight against illegal immigration. I think it will be interesting to see if the administration challenges this on the narrow grounds that Hillary spoke about, namely, the question of federalism and does the state have the power to pass a law on an issue that it will be argued is exclusively a federal responsibility, or will it do it more ideologically honestly on the grounds of equal protection?

That's the reason that the president opposes it; he thinks it will be used to harass Hispanics and therefore its a violation of the equal protection clause under the law. Either way I think it will lose and I think it will be a good day for those wanting to stop illegal immigration.

BAIER: Arizonans who support this and the governor say they were acting this way because the federal government was not doing its job. They found out about this lawsuit against this law from this videotape, not from the federal government, and find out before the federal government has dispatched these National Guard troops to the border. It seems like the cart before the horse.

HAYES: It does. I think the substance matters more than the protocol here. The bigger question is what Charles raises, and the implications, the legal implications, particularly how they argue, if it's on the federalist ground. This could have profound effects through the years about the question of who writes these kinds of laws.

BAIER: And doesn't, Juan, this law mirror the federal law?

WILLIAMS: It does, but what we have here is a situation where they have, the state government has said, and I think properly, that the federal government has abdicated its responsibility in dealing with the illegal immigration issue.

When you hear people talk about a dereliction of duty, it's not that we failed to care about illegal immigration or build walls. We have. The dereliction of duty is we find it political impossible to say here is what we'll do with the 12 to 13 million illegal aliens already in this country.

We don't have a way to deal with it and the politicians left and right are stuck. That to me is an example of how American leadership is failing in this moment.

And the second thing I'd say is Charles says he hopes they'll enforce it properly. If you ever want indication of why there should be a legal challenge and why Lations are concerned about this law, is, well, gee, you hope they enforce it properly and hope the cop doesn't think you look kind of suspicious? That's troublesome.

BAIER: I disagree. I think there are a few people out there that will have a problem with the process and that this administration seems to sometimes put something ahead of other things and it just comes out the wrong way. It's painting a picture a couple of times here.

KRAUTHAMMER: The fact that Hillary Clinton spoke about it in Ecuador ten days ago means to me that it was a mistake, it was a slip-out. She knew about this. They were going to roll it out later. This is not the way anybody would plan this and shouldn't in any case, even if they were in Washington, enunciated by the secretary of state. It should come from the Department of Justice.

So it's obviously a screw-up and everyone is trying to cover it up now or at least make the best of what they have. But on substance I think it's a good idea. Challenge it and let's see who is right.

BAIER: You've been voting this week at our homepage at for the "your choice" topic of the Friday lightning round coming up. Coming up we'll find out the winner after the break.


BAIER: Every week at our homepage,, viewers vote on what topic we should discuss first in this, the Friday lightning round. Today, the winner is -- drum roll, please -- Juan's wild card pick. There you are.

WILLIAMS: That is a wild card, my gosh. Let me thank Alvin Greene in South Carolina for paying my entry fee of $10,400 and delivering me these votes, because I didn't campaign.

BAIER: That is your pick?

WILLIAMS: My pick is Alvin Greene, who I understand now that the Democratic Party of South Carolina has certified as the winner and he will be the Democrat's nominee for the U.S. Senate to run against Jim DeMint.

This is the most incredible story not only this week, it may be the most incredible political story of some time. I think a novelist, I think you have to get Harper Lee and Langston Hughes and Faulkner to create a story like this.

The guy is unemployed, living on his dad's couch, doesn't have a website, doesn't have a campaign, doesn't campaign, doesn't debate, and gets 60 percent of the vote. It's a miracle. It's an oddity.

BAIER: Charles?

KRAUTHAMMER: I put the movie in the hands of Mel Brooks, Billy Crystal. It's an "only in America" story. I love it. As a journalist, not as a citizen, I love that the next poll that comes out on this shows him neck and neck with Senator DeMint. I want this to be a real race.

HAYES: Zero chance that happens. That's why the conspiracy theories are ridiculous from the beginning. Is it possible to invent somebody more of an outsider? This is why this is a great story. But he has no chance.

BAIER: OK, next topic, we decided to do winners and losers of the week. We'll go down the row here. Steve, you are first.

HAYES: The winner is the U.S. men's soccer team who rallied from a two-zero deficit at halftime to finish with a tie with Slovenia. The loser is the referee who took away the game-winning goal in the closing minutes after the U.S. players, three U.S. players in the penalty box, were mugged. And the U.S. team scored nonetheless, making it three-two. He took it away. He's not offering an explanation and neither is FIFA. It is a complete outrage.

BAIER: We apologize for the people who Tivoed the game or were waiting for results. Steve is the spoiler.

Juan, winners and losers.

WILLIAMS: I think Joe Barton is my loser of the week.

BAIER: Congressman from Texas.

WILLIAMS: Who said the White House was engaged in a shakedown of BP by simply saying they are announcing that BP would put $20 billion in the escrow account. I just think he made an outrageous statement and tried to apologize and the Republican Party has distanced himself from him. That's clearly a loser move.

The winner of the week, Kevin Costner. Kevin Costner the actor has now risen above acting, as you see testifying, but now actually down in the Gulf and taking some of the technology he developed as an entertainer or director to try to help with the Gulf spill. That's really terrific.

BAIER: Charles, winner and losers?

KRAUTHAMMER: Big loser, Tony Hayward, the head of BP, who got whacked around this week, yesterday in Congress, and who got his life back except it now comes without his job.

Big winner is North Korea, which lost to Brazil in soccer by only one goal and also managed to sink a South Korean ship and kill all aboard and go almost now three months without even a slap on the wrist by the United Nations. It's lucky it isn't the Jewish state. It might be otherwise.

BAIER: Last topic, video ambushes playing out in campaigns, obviously, but they're also playing out in streets on Capitol Hill. There you see Congressman Bob Etheridge from North Carolina with a little incident that got a lot of coverage on cable. It wasn't covered on network news. Charles?

KRAUTHAMMER: Well, that's the bias that we -- that is like the sun rising in the east. You accept it. There's nothing we can do about it. I think what is interesting here is how people spoke about how Internet democratized writing and journalism.

It democratized ambush journalism. It used to be a specialty of "60 Minutes" and now anyone with a camera can do it.

BAIER: Juan?

WILLIAMS: We have two of these incidents back-to-back, the Helen Thomas situation and this one. But in general, it strikes me is if a congressman hadn't answered he would have come across as a jerk by turning and walking away. It was kind of a no-win situation for him. In that sense I feel for him.

On the other hand, why he felt the need to hit the guy and grab the guy, that took it over the top, and that's what demonstrated I think a lack of good behavior, shall we say.

HAYES: If the congressman hadn't answered it wouldn't be an issue. We would have never seen the video.

I have mixed feelings about this. On one hand it's good to provide people an opportunity to answer questions in a respectful way. On the other hand, if they don't agree to talk to you, you have no choice sometimes as a journalist or video blogger to go and get in their face and ask them the questions.

BAIER: The Friday lightning round, ladies and gentlemen.

That's it for the panel. But stay tuned for a behind-the-scenes look at someone who has been in the spotlight in recent days.