The U.S. Justice Dept. is skating on pretty thin legal ice in bringing suit against the state of Arizona for trying to protect its citizens from a flood of illegal immigrants.

The DOJ alleges the statute is unconstitutional and is basing its entire case on the claims that it violates the provision in the constitution known as the supremacy clause. The effect of this clause is that Federal law trumps any incompatible state law. The exact language of the clause goes like this:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

The problem with the DOJ case is that there is nothing “to the contrary” in the Arizona law. In fact, just the opposite is true. The Arizona statute follows Federal law. All it does is put the state in the business of helping the Feds enforce their own law. Obviously, this is help the Feds don’t want because they have no intention of enforcing the law.

There is some irony in the DOJ’s complaint that the Supremacy clause renders the Arizona statute unconstitutional while doing nothing about the so-called “sanctuary cities” that actually are acting “to the contrary” to Federal law. By protecting illegal aliens, prohibiting their police officers from inquiring into the immigration status of suspicious persons, and failing to turn over discovered aliens to the Federal authorities, these cities are engaging in practices that would land an individual in jail for obstruction of justice.

It what appears to be an attempt to give the lawsuit some moral basis, President Obama declared that the Arizona law “has the potential” of being enforced in a discriminatory manner. And that, of course, is true even though the plain language of the statute prohibits racial profiling. The problem with the President’s claim is that is true of just about any law.

Suppose, for example, the U.S. Dept. of Justice were to enforce the Federal Voting Rights Act only when the accused violator is white and the victim is black. Should that ever happen it still would not be grounds for striking down the statute. Although it would justify firing the U.S. Attorney General. But of course, that would never happen. Did it? I mean, would it?

There is also the idea that a state has it own jurisdiction over immigration. In an old (1837) case the city of New York had a statute that required the captain of a vessel entering New York harbor with aliens on board to report in writing to the Mayor of the City, giving certain prescribed information. The Court found this did not conflict with Federal authority over immigration. The majority opinion ruled that a state “has the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States. That, by virtue of this, it is not only the right, but the bounden and solemn duty of a State, to advance the safety, happiness and prosperity of its people.”

Apparently, in the absence of an explicit prohibition the state is free to enact its own laws even if the Federal government also deals with the same subject provided there is no conflict to trigger the supremacy clause

In addition to a weak legal case, the President appears also to be skating on thin political ice. A new Rasmussen survey finds that 56 percent of voters disagree with challenging the Arizona law and only 28 per cent agree. Another 16 per cent are not sure. The survey also found that 61 per cent of voters would like to see a similar law enacted in their state.

Even worse for the President and his party is that 86 per cent of likely voters say the immigration issue is at least somewhat important to how they will vote for Congress this November, and 55 percent say it is “very important.” Among voters who consider the immigration issue “very important” to how they will vote 72 percent disagree with the challenge.