Tuesday, the Obama administration filed a lawsuit challenging the constitutionality of a new law in Arizona that controversially targets illegal immigration. Host Michel Martin talks with New York University Law Professor Cristina Rodriguez about how other states are drafting measures to fight illegal immigration that might also be viewed as controversial.

MICHEL MARTIN, host:

Now to our political chat. We're going back to another emotional and challenging issue: immigration. This week the Obama administration filed a lawsuit challenging Arizona's new anti-illegal immigration law. But it turns out that a number of other states are considering similar legislation, so we're going to focus our political chat on that this week.

The National Conference of State Legislatures says South Carolina, Oklahoma and Utah all have similar measures drawing support that could lead to passage.

We've called Cristina Rodriguez. She's been tracking immigration legislation around the country. She's a professor at New York University School of Law. She's with us now. Welcome, thank you for joining us.

Professor CRISTINA RODRIGUEZ (School of Law, New York University): Thank you very much for having me.

MARTIN: Now, I know you have an opinion about the Arizona law, but I'm going to ask you to hold on to that for a couple of minutes just to give you the big picture first. There's been a tremendous focus on the Arizona law, but it turns out that other states already have measures in place to try to combat illegal immigration in their view. For example, in 2007, Oklahoma cut off undocumented immigrants from state services and made it a crime for anybody to provide transport or assistance to somebody who's out of status. So, what is it that makes the Arizona law so distinct in your view?

Prof. RODRIGUEZ: I would say there are three things that make it distinct. The first is that it's the first law that creates a state offense out of being present in the state without complying with federal registration requirements. And so the imposition of a criminal penalty for not following federal law to register is novel.

Secondly, the Arizona law appears more than other laws to make the questioning of people who are stopped for any lawful reason are detained or arrested mandatory. And one of the ways that it does that is by authorizing legal residents to sue if officials are not enforcing the law to the full effect permitted by the federal government.

And I think the third thing that makes it distinct is that it happened to pass during a moment when there was focus on the issue and it seems to have broken through the public's attention. And as a result, has generated a lot of concern and controversy.

MARTIN: Now, as we mentioned, a number of other states are considering similar measures. A number of them were introduced too late to be passed, so they have to addressed next year. But is it your view that this is in response in part to the success in Arizona? Or were these measures were in the works anyway?

Prof. RODRIGUEZ: Well, several of the states that are considering them, Oklahoma and South Carolina being the best examples, already had laws that were very similar on the books. And I do think it's possible that they saw what happened in Arizona and decided that they would amplify their laws and it may be a good political moment in those states as well to go one step further.

MARTIN: What is your view now that we've heard kind of the big picture there? What's your view of the Arizona law?

Prof. RODRIGUEZ: That's a complicated question. I think my view is that it's misguided as a matter of policy, but that much of the law is consistent with federal law and that the legal challenges are not as obvious as they might seem at first glance. And it's too simple to say that states can't regulate immigration. Because what the state is trying to do is enforce criminal laws, employment related laws and use its police power to protect, in its perception, a public health and safety issue.

MARTIN: What are the Obama administration's grounds for challenging the law? There's no one who can claim a harm at this point, right? There's no one...

Prof. RODRIGUEZ: That's right.

MARTIN: So no one can say that I've been racially profiled because the law hasn't gone into effect yet. So what are its grounds for challenging it?

Prof. RODRIGUEZ: Well, it's exactly the case that they are bringing a pre-enforcement challenge. And so their claims are all what we call preemption claims or the claim that federal law supersedes or preempts state law. And so they're arguing both that states don't have the power to enact immigration laws. And Arizona is trying to enact an immigration scheme. The Constitution gives that to the federal government.

And, secondly, that there are specific statutes on the books that conflict with the state law, federal statutes that the state laws interrupt or disrupt.

MARTIN: What is your sense of the states that are trying to move in this direction? I'm looking at the list of states where people are at least talking about this and I don't see a clear pattern. Do you? I mean, I see, I mean, obviously some states have the sort of a more conservative political environment in general. But, you know, similar measures have been introduced in Michigan, Minnesota, Pennsylvania, Rhode Island. Those aren't border states.

Prof. RODRIGUEZ: That's right. I think there are a couple of reasons why you see that. First is that if you track the legislation that's being introduced in states across the country, the full range of legislation has been introduced for the last five years. So you see very restrictionist measures and also measures intended to benefit immigrants introduced in all states, whether they're politically conservative or liberal.

But where the restrictionist tight measures tend to pass, is in states where Republicans are in control of the state House or of the legislature. And so that's an important factor.

The other important factor is the extent to which the state is experiencing immigration in large numbers for the first time or those numbers have arrived relatively recently. And so a lot of the states share that profile as well.

MARTIN: We need to take a short break, but when we come back we'll have just a couple more minutes with Cristina Rodriguez.

This is TELL ME MORE from NPR News. Please stay with us for more on the current measures in immigration reform and the measures that states are considering. Please stay with us.

(Soundbite of music)

MARTIN: I'm Michel Martin, and this is TELL ME MORE from NPR News.

Coming up, we hear your comments about last week's program. And then we turn the mics over to the Barbershop guys. You know they've got plenty to talk about, too. And we'll talk about new moves in Cuba. That country has promised that the country's Roman Catholic Church the country's promised that it will release 52 dissidents. We'll hear more about that.

But first, we have just a couple more minutes with Cristina Rodriguez. She's a professor of immigration law at New York University School of Law. She's telling us about efforts by a number of states to follow the direction that Arizona said in trying to use state measures to combat illegal immigration.

Before the break, Cristina Rodriguez, we talked about what grounds the Obama administration thinks it has to challenge this law. The other question I had for you is we've heard a lot of talk about countermeasures that some other states and localities are taking to protest Arizona's law. Are those largely symbolic, or do any of those have the force of law?

Prof. RODRIGUEZ: Most of them are symbolic. There are statements of opposition or calls on the federal government to step in somehow to the extent that they involve boycotts or decisions by cities like Los Angeles not to do business with Arizona. Those have obvious consequences. They're economic less than legal, but they're significant nonetheless.

But the vast majority of the measures have been symbolic. And in some places, some localities have tried to pressure states to adopt resolutions that they won't adopt an Arizona-type law. So that also has a legal benefit, but it's not a direct legal reaction to Arizona.

MARTIN: And, finally, may I press you to hazard an opinion about the possible the likelihood of success of the Obama administration's challenge on this. A number of people find this very controversial. They think that it's that the administration would do better to make sort of an obvious political or moral judgment and say, as opposed to trying to make it on the grounds of sort of state and federal relations, which a lot of people don't understand. I just would like to have your opinion about that.

Prof. RODRIGUEZ: I think the preemption challenge has a much better chance of succeeding legally than a challenge based on civil rights or equal protection, especially for the reason you said, is that the law hasn't been enforced yet. And so it would be exceedingly difficult to show that it's discriminatory until it's actually enacted.

I think that the preemption challenge has a good chance of succeeding because courts traditionally treat immigration law as exclusively federal. And the law is framed as an immigration law. It's introduced as an immigration law even though some of its supporters treat it as a criminal law or an exercise of the police power. But I do think that there are strong arguments that this does not interfere with the federal government's ability to enforce its own laws.

And so if a judge finds this persuasive, a decision the other way is quite plausible and legitimate as a legal matter. But because of the nature of immigration, the Obama administration may be able to win this suit.

MARTIN: Cristina Rodriguez focuses on immigration law and policy. She's a professor at New York University School of Law, and she joined us from our bureau in New York. Thank you so much for joining us.

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