IRLI has sought leave to file an amicus brief (attached below) with the federal district court in Salt Lake City. The IRLI brief highlights a critical point of law that none of the Attorneys General in any of the states being sued by the Obama administration has yet addressed:  The claim by both DHS and the La Raza plaintiffs that agency “priorities” preempt state cooperative enforcement laws like HB 497.  IRLI investigated the source of this alleged “priority” power grab and has concluded that it is illegitimate, as it is almost entirely based on internal DHS memoranda, in particular the controversial “Morton memoranda” by current ICE Director John Morton.  

  “The problem is that it is Congress--not the President or DHS officials-- who have the power to preempt state law,” commented IRLI chief legal counsel Mike Hethmon. “The statutes enacted by Congress completely contradict the agency’s own political spin placed on the immigration control duties of DHS.”

 IRLI argues that DHS “priorities” which contradict federal statutes cannot preempt a Utah law that in this case is based on the statutes, rather than the agency’s current political agenda.  The amicus brief described how since 1994 Congress has repeatedly acted to restrict agency discretion in the area of immigration control, and in 1996  Congress ordered DHS to perform mandatory inspections of every alien found in Utah who (1) is an applicant for admission to the US or (2) fails to carry their alien registration document on their person.  Moreover, Congress invited Utah law enforcement agencies to actively participate in this process as full partners, not supplicants or agency minions.

  IRLI disagrees with the state Attorney General on the permissible scope of HB 497.  In their briefs, Utah appears to concede that the President and DHS can make immigration enforcement decisions based on politics, and that Congress and the states are impotent to stop them.  IRLI is concerned that the Utah AG will tell the court that the law enforcement provisions of HB 497 only authorize police to call ICE in very restricted circumstances.  The state's fear is that a more robust claim that Utah police can do more than make a phone call to ICE might be jumped on by the court to show a “burden” imposed by Utah on the feds. 

  IRLI believes that theory is weak–because it is Congress which has “burdened” DHS with enforcing federal law, not the state of Utah. "The Obama administration is unlawfully claiming power not delegated to it by Congress, and is now acting unlawfully in its lawsuit against the state of Utah.  This abuse of power transforms an already controversial immigration preemption case into a reprise of the classic 1952 Supreme Court battle over "separation of powers," Hethmon explained.  In the 1952 Youngstown case, the Court told President Truman he could not use presidential policy goals to justify seizing American steel mills during a strike, as his policy “priorities” were not backed by any power delegated by Congress.

“We hope the insights gained from the research in this case can be shared in other states as well,” Hethmon added.