Legal Commentary

The Bybee Immigration Memo

By Jonathan H. Adler

Yesterday?s Washington Post reported that the Obama Administration?s potential legal challenge to Arizona?s new immigration law is complicated by a 2002 Justice Department memo that suggests states have the authority to enforce federal immigration law.

The document, written in 2002 by the Justice Department?s Office of Legal Counsel, concluded that state police officers have ?inherent power? to arrest undocumented immigrants for violating federal law. It was issued by Jay S. Bybee, who also helped write controversial memos from the same era that sanctioned harsh interrogation of terrorism suspects.

The author of the Arizona law ? which has drawn strong opposition from top Obama administration officials ? has cited the authority granted in the 2002 memo as a basis for the legislation. The Obama administration has not withdrawn the memo, and some backers of the Arizona law said Monday that because it remains in place, a Justice Department lawsuit against Arizona would be awkward at best. . . .

The 2002 opinion, known as the ?inherent authority? memo, reversed a 1996 Office of Legal Counsel opinion from the Clinton administration. ?This Office?s 1996 advice that federal law precludes state police from arresting aliens on the basis of civil deportability was mistaken,? says the 2002 memo, which was released publicly in redacted form in 2005 after civil rights groups sued to obtain it.

The ACLU has posted a redacted copy of the memo obtained after litigation, and here is the 1996 memo it replaced.

Full post as published by The Volokh Conspiracy on May 19, 2010 (boomark / email).