Specifically, the lawsuit challenges three sections of HB497 that require law enforcement to verify the legal status of those arrested for class A misdemeanors or felonies, allow the warrantless arrest of those suspected of being in the country illegally, and make it a crime to harbor or transport undocumented immigrants.
Homeland Security Secretary Janet Napolitano said laws like Utah's divert law enforcement resources from the most serious threats "and undermines the vital trust between local jurisdictions and the communities they serve."
She said the department will focus enforcement efforts on "criminal aliens," recent border crossers and "egregious immigration law violators and employers who knowingly hire illegal labor."
Utah Attorney General Mark Shurtleff said he has worked closely with the Justice Department and he had hoped it wouldn't file the suit. But he said that Utah's law was significantly different than the other laws that were challenged.
"We feel strongly that we made significant changes with our law compared to Arizona's at the time," Shurtleff said. "We think the way our law is, with our changes, we think we can defend it, that we can prevail on this and have it held constitutional."
Shurtleff said during a visit from Justice Department lawyers last month there were discussions of changes that could be made to address the administration's concerns, and he hopes the dispute can be resolved.
Ally Isom, the spokeswoman for Gov. Gary Herbert, who is named as the defendant in the lawsuit, said the Governor's Office had only recently seen the complaint but believes the law is sound.
"We are confident the Legislature worked hard to craft a law that is constitutional and we're also confident that it will withstand scrutiny and look forward to the court ruling in our favor," she said.
The lawsuit asserts that the federal government has "pre-eminent authority to regulate immigration matters," and in enacting a package of immigration bills, "the State of Utah has explicitly disregarded Congress's policies and objectives in favor of its own."
Utah's laws actually undermine and disrupt federal immigration enforcement efforts, the Justice Department argues. While the state is a partner in immigration enforcement, the suit states, it "must remain in a position to be fully responsive to the direction and guidance of the federal government and to federal priorities."
Rep. Stephen Sandstrom, R-Orem, who sponsored HB497, said he was disappointed the federal government went ahead with the lawsuit after Justice Department attorneys indicated during face-to-face meetings that they believed Utah's law was more "prudent" than measures passed by other states.
"They basically said there's an extreme amount of pressure being exerted within the administration to challenge any and all legislation" addressing immigration, Sandstrom said. The arrest power seemed to be the piece the Justice Department was most concerned about, Sandstrom said, but he remains open to changes.
HB497 was part of a package of immigration bills passed by the Legislature earlier this year. The Justice Department opted not to challenge a bill that would create a unique Utah guest worker permit, or another that would let Utahns sponsor immigrant workers.
"They considered it, frankly, but having discussed it with them in the last few days they've decided those weren't quite ripe," said Shurtleff, who received a letter from the department explaining the decision. "The letter says they still consider those laws to be preempted. They're just not going to challenge it yet."
The American Civil Liberties Union and National Immigration Law Center filed a lawsuit challenging HB497 more than six months ago and the law is not in effect due to a temporary restraining order pending the resolution of the lawsuit.
A hearing was scheduled before Judge Clark Waddoups on Dec. 2. Shurtleff said he expects the Justice Department to ask Waddoups to combine the two challenges and postpone the hearing. That will likely mean the restraining order will be extended into next year, possibly even after the legislative session.
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