Attorneys for Haley argue in court filings that federal law doesn’t authorize the lawsuit in the first place.
The government “lacks statutory authorization to bring this action,” Attorney General Alan Wilson wrote in a 55-page response filed in federal court Nov. 22. “The Supremacy Clause of the United States Constitution simply affords no right of action either to private litigants or to the United States.” It would be up to Congress to grant that right, he argued.
Wilson is representing Haley, who was sued last month by the U.S. Department of Justice.
Federal prosecutors are seeking to halt the new law, which takes effect Jan. 1, while their lawsuit challenging its constitutionality moves forward.
South Carolina’s law, considered among the toughest in the country, requires all law enforcement officers to call federal immigration officials if they suspect someone is in the country illegally. The question must follow an arrest or traffic stop for something else, and officers are barred from holding someone solely on that suspicion.
Opponents say it encourages racial profiling.
The law also requires businesses to check their new hires’ legal status through a federal online system, and revokes operating licenses for businesses that knowingly violate the law. Making fake photo IDs for illegal residents becomes a felony.
The U.S. Justice Department is challenging similar laws in other states including Arizona and Alabama, saying the measures violate people’s rights to due process. Justice Department officials said South Carolina’s law, like Alabama’s and Arizona’s, diverts federal resources from high-priority targets, such as terrorism, drug smuggling and gang activity.
They contend the laws will result in the harassment and detention of foreign visitors, legal immigrants and U.S. citizens who can’t immediately prove their legal status.
A hearing in the case is set Dec. 19.
Wilson wrote that he based much of his response on opinions issued in Alabama, where federal judges have allowed some portions of the law to stay in effect but have blocked others. Wilson also noted that South Carolina’s law lacks many of the provisions with which an Alabama judge took issue, like prohibitions on rental agreements or encouraging illegal immigrants to enter the state.
In their own filings seeking an injunction to stop the law from going into effect, Justice Department officials have said only the federal government has the constitutional authority to enforce immigration laws.
Wilson also criticizes the government for waiting so long to bring its suit.
“Apparently the United States was not concerned about irreparable harm when it waited to bring this challenge until four months after passage of this law and just two months before it is to take effect,” Wilson wrote.