Oppose Poe/Kinzinger Amendments to H.R. 1

Recipient: U.S. House of Representatives

Dear Representative:

On behalf of The Leadership Conference on Civil and Human Rights, we write to express our strong opposition to any amendment to H.R. 1 that would bar the Department of Justice or any other federal agency from challenging the constitutionality of Arizona law S.B. 1070. Any such amendment, such as that proposed by Reps. Ted Poe (R-TX) or Adam Kinzinger (R-IL), would upend our Constitution’s well-established principle of separation of powers, and would set a dangerous precedent with ramifications that go far beyond the present challenge to Arizona’s law.

Article II of the Constitution makes clear that it is the job of the President to “take Care that the Laws be faithfully executed.” In the case of United States of America v. The State of Arizona and Janice K. Brewer, this is precisely what he is doing: acting through the Department of Justice, he has argued – successfully – that the Supremacy Clause of Article VI and Congress’s well-established plenary authority over immigration prohibit states from enacting conflicting laws such as the one at issue in Arizona.

If adopted, the Poe or Kinzinger amendments would bring to an immediate halt the Department of Justice’s ongoing effort to uphold the Constitution in this case, violating the principle of separation of powers in the process. At the same time, we believe that either amendment would also amount to unsound policy, as the enactment of the Arizona law carries with it tremendous implications for civil rights, foreign policy, and immigration law that are most appropriately handled at the federal level.

If the Poe or Kinzinger amendments were adopted, they would also establish a dangerous precedent by opening the door to congressional restraints on active pending Department of Justice litigation, in a potentially-endless variety of cases, through back-door defunding moves. Our federal system is premised on the Department of Justice developing carefully-considered legal opinions, in furtherance of the constitutional duties of the executive branch, which should not be supplanted by the political preferences of some legislators.

In addition, we note that the State of Arizona has recently filed a counterclaim in the lawsuit in question. It strikes us as unwise to prevent the United States from defending itself against this counterclaim, potentially exposing taxpayers to compensatory damages in the event of a default judgment, which conceivably could occur if the Poe or Kinzinger amendments were adopted and the Department of Justice had to abruptly withdraw from the case.

For these reasons, we strongly urge you to oppose any amendment that would bar the Department of Justice from continuing its lawsuit against Arizona law. Thank you for your consideration. If you have any questions, please feel free to contact Senior Counsel Rob Randhava at 202-466-6058.