From Reason’s Shikha Dalmia:
Defenders of Arizona’s harsh new anti-immigration law are going on the offensive: They are fanning out on TV, radio talk shows, and newspaper columns arguing that there is nothing nefarious about this law because all it does is help Uncle Sam enforce its existing laws. Even if this claim were true, it would be as constitutionally presumptuous as Arizona dispatching state troops to help the federal government fight the Iraq war.
[…]
[…] the law raises equal protection and federalism issues large enough to drive a Mexican truck through.
One of the most controversial aspects of the amended law is that it makes it a state crime for immigrants—legal and illegal—to step out of their house without their papers. Defenders claim that there is nothing Gestapo-like about this provision because immigrants are already required by federal law to carry their papers. What’s more, they note, this law won’t mean that cops will simply be able to stop anyone on the street and demand proof of legality.
The amended law limits such inquiries to instances when cops make a lawful stop, detention, or arrest in the course of enforcing some other law or local ordinance. But including local ordinances as grounds for an immigration inquiry opens all kinds of tantalizing harassment possibilities for officials like Joe Arpaio—the notorious but popular Arizona sheriff who has made it his personal mission to root out undocumented aliens from the state by launching crime sweeps in Latino communities on the flimsiest of pretexts.
Under the new law, Arpaio could troll Hispanic neighborhoods demanding the papers of anyone breaking, say, a local pooper-scooper law while walking their dogs. If they can’t comply on the spot, he could haul them to a police station while their immigration status is checked. If it turns out that they are here illegally, they could be arrested, pending deportation. This means that the same pooper-scooper violation that would produce nothing more than a small fine for unaccented white folks—since they would not raise any “reasonable suspicion” that would justify an inquiry into their immigration status—could well result in a lengthy police encounter for Hispanic citizens or Hispanics with valid visas—and deportation for anyone who had overstayed their visa by even a day. “If this doesn’t raise equal protection and Fourth Amendment concerns then what does?” asks Cecillia Wang, an attorney with the American Civil Liberties Union.
But the more serious constitutional problem with the Arizona law is that it illegitimately usurps a federal function given that, as with foreign policy matters, Uncle Sam has ultimate jurisdiction in setting national immigration policy. Professor Juliet Stumpf of Portland’s Lewis & Clark Law School notes that courts have given states some leeway to set their own laws to deal with immigrant-related crime and other issues so long as their primary purpose is not to regulate immigration flows. But the Arizona law is not exactly subtle about what its true aim is. Its opening sentence reads: “The intent of this act is to make attrition [of the immigrant population] through enforcement the public policy of all state and local government agencies in Arizona.” In short, it is criminalizing immigration-related violations under state law not to deal with immigrant-related crimes—but to give state authorities expanded tools to drive out immigrants. Hence, even if the Arizona law is identical in content with federal law, notes Prof. Stumpf, it might still be overturned by courts on jurisdictional grounds.
But that’s not the only way this law steps on federal toes. Congress’ 1996 immigration reform act expressly forbade local participation in immigration enforcement without federal authorization and supervision. Except for Arizona, notes Muzaffar Chishti, Director of New York University’s Migration Policy Center, he can’t think of a single state or locality that has taken upon itself to enforce federal immigration law without first entering a memorandum of understanding with Uncle Sam. “Nothing in law is ever black and white,” comments Chishti, “but it is very unlikely that there is a judge out there who would uphold the Arizona law.”
The reason is that if states unilaterally start arresting undocumented aliens and dispatching them to the federal government for deportation, they will force the federal government to expend law enforcement resources on immigration when it might have other, more pressing, concerns such as, say, terrorism.
I must say, I am hesitant to accept any analysis that finds the potential effectiveness of a law aimed at curtailing illegal immigration a demonstrable problem — and that is essentially what Ms Dalmia is complaining about when she takes his potshot at Sheriff Joe Arpaio, who is “notorious” precisely for his having been thought effective at finding illegal immigrants.* That Ms Dalmia doesn’t believe the capture of illegals is a legitimate function of Arizona law enforcement explains his attitude — and yet, Arpaio’s local popularity speaks to the wishes of Arizonans, who by a large margin find the illegal immigration problem in their state to be of immediate concern, and might ask Ms Dalmia to kindly mind her own business.
Dalmia’s argument, such as it is, turns on the idea that Arizona law enforcement’s arrest of illegal immigrants counts as an instance of a state “setting national immigration policy”; but the national policy is what it is — the federal laws detailing and describing immigration trangressions is on the books (and Arizona is required to follow federal civil rights law in its enforcement campaign) — which means that, on the larger issue, Arizona, by enforcing the federal law, is not “setting national immigration policy” so much as it is asking the federal government to enforce laws already on the books. If the federal government is then “forced”, as Dalmia argues could be the case, “to expend law enforcement resources on immigration when it might have other, more pressing, concerns such as, say, terrorism,” then the federal government can either hire more law enforcement, or else amend existing federal law to declare what is now illegal legal — and so no longer subject to the jurisdiction of law enforcement on either the state or federal level.
Where real legal challenges may occur, however, are in those areas of the Arizona law that appear to go beyond (or, if you prefer, localize, by way of particularizing) federal law. But even in those instances, the state will be able to argue that they aren’t violating or exceeding federal law merely by codifying how it must function at the local level; or, to put it another way, the state will claim that when it says
IN ADDITION TO ANY VIOLATION OF FEDERAL LAW, A PERSON IS GUILTY OF TRESPASSING IF THE PERSON IS BOTH:
1. PRESENT ON ANY PUBLIC OR PRIVATE LAND IN THIS STATE.
2. IN VIOLATION OF 8 UNITED STATES CODE SECTION 1304(e) OR 1306(a)
— it is merely specifying how federal law applies in the immediate state jurisdiction.
At any rate, some interesting questions raised here. So please, discuss at your leisure.
****
update: In the comments, Ishmael notes that the text of the law I pointed to (or rather, a Reason commenter pointed to, and I quoted) doesn’t exist as presented. I confess that I was unable to get the link in the original comment left on Reason to work and took the commenter’s word that what he was linking was accurate.
Why do you hate hate hate the brown people and immigration?
Then the next step is to impeach O! on the grounds that he has not “ensured that the laws be faithfully executed” as his oath requires.
this seems kinda silly to me. Immigration and Customs Enforcement is their own little department that’s supposed to focus on… Immigration and Customs Enforcement. If they have to hire more people maybe the money could come from the Census advertising budget, lord knows that was useless.
Oath, schmoath. Barack won, dammit. He gets to be king. It says so in that Constitation … Declaration … thing … or something.
It’s a girl.
Absolutely. They certainly do love to waste money.
huh? wha?
it’s like when they threaten to cut police and firefighters and teachers if you don’t let them raise taxes.
Just agreeing that those Census ads were a waste of money, Maggie.
…were the Iraq war taking place in Arizona.
I know bh, um, I was wondering about sdferr’s #5. I’ve been missing a lot lately.
Dalmia’s arguments are erudite nonsense. Essentially it comes down to two things:
1-Illegal immigration is solely a federal obligation and the federal government has the authority to abdicate its obligation, never mind the consequences to the State of Arizona nor its other obligations to Arizona as provided by the federal constitution.
2-Not all immigrants are created equal. All legal immigrants prior to becoming (myself included prior to becoming a citizen) are required by federal law to carry their ‘green card’ at all times. So therefore Arizona’s requirement is no more onerous than the federal requirement yet Dalmia thinks its a violation of the equal protection clause to require an illegal alien to carry documents that the courts have upheld that a legal alien must carry. Since it is rather obvious that an illegal alien cannot carry a permanent resident alien card since illegal aliens do not qualify for such a status she implies that any effort to enforce existing laws are unjust on its face. Arizona actually grants illegals ‘more’ rights than a legal immigrant since it presumes that any government issued ID is sufficient proof of legal residency in the US unlike a legal alien who must produce the alien registration card to prove legal residency.
The police have a right to stop anyone under the guise of reasonable suspicion and demand to be shown an ID. What Dalmia is worried about is that the Arizona police might actually find illegal aliens and force the federal government to actually do what it is supposed to do with illegal aliens, deport them.
Both miss Dahlmia and the newly birthed law maggie.
;-)
ah, okay. so you didn’t have some alien lizard baby. good… good…
The law, on account of the homey fastidious noticeyness of the thing, I’m thinking. Me, (as opposed to my wife) I tended to walk past that thing sitting there for months without paying attention that it needed to be cleaned up or put away in its proper place, whereas wifey waited for me to notice, and when I didn’t, let me have it with both barrels.
Although I’m no fan of Joe Arpaio, he already had this authority to search for and detain illegals because his department was contracted to do so by the federal government. There was no need for such detention to be made pursuant to a “lawful contact” either, because he essentially was an agent of ICE. He wasn’t particularly effective at it, according to a Goldwater Institute study, but to say this law suddenly granted him new powers is false.
I don’t really care for the reasoning about feds having to expend extra dollars here. Within the confines of this discussion, it would seem to me that Arizona law enforcement would be doing some of the fed’s job for them in apprehending illegal aliens. Then it would simply be up to the feds to follow through on the accepted and usual deportation process.
Only if it is stipulated a priori that the feds have no intent to, like, uphold the law as it is, and therefore have not budgeted any funds for enforcement whatsoever, could it be a case of it costing them mounds of extra cash.
I mean, the government wouldn’t have made such an irresponsible decision, now would they?
Perhaps Dalmia would have preferred the Arizona AG file for a writ of mandamus against DHS Secretary Napolitano? “Hey, do your #$%&ing job!” That might have made some fun CON LAW textbook pages.
It is unlikely that any real legal challenges will occur based on areas of the Arizona bill that do not exist in the versions that were signed into law.
The “trespassing” blurb quoted above is one of the two favorite disinformative propaganda claims made by opponents of the bill (the other being the claim that the law doesn’t specify how police can determine the presumption of citizenship during a stop). Neither of these claims are accurate regarding either the passed version of SB1070 or HB2162. They were, however, heavily circulated in the left-side blogosphere and several media outlets during the initial “OMG Nazi!” effort to churn up opposition.
The SB1070 law as originally passed and signed can be found on the Arizona legislature’s web site: here (Arizona SB1070 “House engrossed version”). The amended-after-passage version which incorporates HB 2162 can be found here (Arizona SB1070 engrossed with HB2162).
Each version is a fairly short and simple read, as far as laws go (e.g. where it amends an existing section of law, it shows how the entire revised section will read rather than just offering a list of cryptic textual additions and deletions that you have to manually cross-reference with the original text to understand). I encourage everyone to read it before commenting on it.
[Note: not a slam against Jeff; more of a reminder to, as always, double-check any claims made in blogs or comments against actual reality.]
Let Arizona highlight the fact that Baracky, like those before him, isn’t really doing his job.
“Even if this claim were true, it would be as constitutionally presumptuous as Arizona dispatching state troops to help the federal government fight the Iraq war”
TWEEEEEEEEEEEEET and an extra E for Bob;^)
We have a personal foul; analogy abuse on team lefty!
Fifteen yard penalty, Automatic FIRST DOWN!!!!
I’m of the opinion that any thing that steps on Federal Toes is most probably a good thing.
I’m also of the opinion that if the Feds don’t want to enforce a law on the books that they should take it off the books.
And if what this actually is, is a libertarian argument for open borders then by all means argue open borders.
Going on about pinching the poor toes of the wonderful Federal Government who ought not have to deal with uppity States and rude Governors is embarrassing.
This is the fundemental threat to our liberties in our time.
State governments usurping power from the Feds.
God help us. The horror.
If it is possible, let them be embarrassed. With all that they get away with, I’m not so sure that they will feel embarrassed, much less recognize what embarrassment is.
Thanks for that, Ishmael. Updated the post.
It says so in that Constitation … Declaration … thing … or something
It’s in the Good and Welfare clause.
Reason is the place to go to if you wish to discover why laws must never be enforced and how the Constitution is ever so flexible.
Bold assertion does not constitute reasoned argument and “feelings” do not constitute evidence nor logic.
“The reason is that if states unilaterally start arresting undocumented aliens and dispatching them to the federal government for deportation, they will force the federal government to expend law enforcement resources on immigration when it might have other, more pressing, concerns such as, say, terrorism”
Shorter, “they might actually force the federal government to do their jobs!”
The opportunity costs cut both ways. What would it serve the state to enforce the state law to the detriment of other functions they can be serving? It’s not like they’re creating another department here, is it? Doesn’t the federal government compartmentalize the immigration and terrorism thing?
LOL…Now the folks at Reason are concerned about terrorism? And I absolutely second Synova’s #23. Come on, Reason. Make that case, because I really want to hear it, but when a, ahem, libertarian website starts bitching about states’ usurping federal law, I tend to turn away.
OI and Synova —
The answer being given to precisely that objection is that the Constitution provides that the feds control immigration policy, and that the Reason folk (well, the ones who agree with the author) are merely being good constitutionalists, not bad federalists.
“the Constitution provides that the feds control immigration policy,”
So what is the policy difference? I mean outside the level of interest in enforcing it of course.
It seems the gist of her position is if Uncle Sam won’t enforce current federal law, too bad for you. My response to her would be mind your own business.
The Constitution assigns Congress the power to ‘establish an uniform Rule of Naturalization’ and ‘to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Power…’ Nothing in the Constitution prohibits a State from enforcing Federal law, meaning enforcement is not expressly prohibited to the States and is therefore permissible by the States.
If Congress deems a law denying the States the ability to enforce naturalization laws is necessary and proper then they can expressly prohibit such enforcement by enacting such prohibitions into law. Can anyone cite such a law?
I got into it on a talk radio program about a week ago with a Hispanic claiming that having AZ cops “enforcing Federal law” was somehow bad. Here’s how to shut these people up:
A while back, President Obama was in Missouri for a speech. In addition to the Secret Service and any Federal Marshals that may have been on site, there were also MO State Patrol, county deputies and local town cops, all of whose powers derive from the MO constitution and legislative process. Suppose one of the people at the event had figured out a way to conceal a weapon and get it past the perimeter security, and appeared he was about to use it to assassinate the President. Since (attempted) assassination is a FEDERAL crime, by this logic, the state/local cop should stand idly by and let the assassin take out POTUS. After all, he wouldn’t want to be “constitutionally presumptuous”.
I wish the focus was civil fines on employers who hire illegals. So if a roofing job is happening on your house and if the roofers happens to be illegals (I am shocked that goes on), that the general contractor gets a fine sufficient to get them to stop hiring illegals. Same for landscapers, restaurants, etc., etc. If the workers have no proof of citizenship, issue the citation but allow it to be dropped in some reasonable amount of time if the employer can show the employee has a valid social security account (employers should be able to easily do that). Make is a local revenue generator for municipalities and you can bet doughnut fueled peace officers and building inspectors will be out there doing their duty.
Joe,
That might provide the disincentive for many illegal immigrants’ coming, but what does it do about illegal immigrants who aren’t coming here to get an “honest” job?
That’s one thing about the new law opponents won’t go near — police aren’t exactly going to have to go out of their way to find illegals. In fact, in the course of investigating violent crimes and property crimes, they’re going to come in contact with a number of people who don’t speak English and have no identification at all. Part of any investigation is getting a positive ID of the perp. Frankly, if you ask most Arizonans, THAT’S the sort of illegal immigrant they’re “out to get.”
I agree with Joe, enforcement needs to be done in a holistic manner – the punishment for employing illegals should be severe.
“Even if this claim were true, it would be as constitutionally presumptuous as Arizona dispatching state troops to help the federal government fight the Iraq war”
Which has been happening all over the Nation with the mobilization of the National Gaurd, which are the states troops, to support the battles in Iraq and A-stan. Just how stupid do you have to be to write the sentence quoted?
It’s not about federalism, it’s about feudalism. Arizona has observed that Dunham is as useless as any fainéant Merovingian or Carolingian, and like the mayors of the palace and the Capetian dukes, will do the work whilst the king is chowning down waffles in his shirtsleeves.
I’m surprised by the racism suggesting employers be fined for hiring illegals, after all if it is racist for cops to ask for papers it’s racist for an employer to do so!(sarcasm)
For those of you not involved in business that have a high number of possible illegal workers please note how the current law works. You see employers aren’t required to verify documents since this might mean some zealot won’t hire somebody because to them the papers seem fishy. This might lead to discrimination so you can’t do that. From a trade magazine this little gem if an employee gives you a SSN that the government says is invalid you can’t terminate them for that, you can only ask for a new number. In practice when a employee is asked about this they vanish. So I just get the feeling that in our business (plant nursery) your damned if you do damned if you don’t.
BTW,have you noticed who has been real quiet in the immigration debate? The UNIONS! illegals doing things Americans won’t do like join the union.
plant nursery
You run a plant nursery?
Can you confirm a suspicion of mine? A couple years ago all my grape ivies died around the same time from causes unknown. For about a year, I couldn’t find a Cissus rhombifolia to save my life, not the regular kind and not Ellen Danica.
Was there a disease going around that killed off all the Cissi or was that just my imagination?
Yeah, that seems to be the main liberal argument – that the Arizona law is unjust because it would actually cause the law to be enforced.
As far as I am concerned, that’s not a bug, it’s a feature.
#41
“The no-match letter clearly states that employers
should not “take any adverse action against an employee,
such as laying off, suspending, firing, or discriminating
against that individual, just because his or
her Social Security number appears on the list” (emphasis
added) and that “[d]oing so could, in fact, violate
State or Federal law and subject you to legal consequences.”
#
Comment by Akatsukami on 5/11 @ 4:57 pm #
It’s not about federalism, it’s about feudalism. Arizona has observed that Dunham is as useless as any fainéant Merovingian or Carolingian, and like the mayors of the palace and the Capetian dukes, will do the work whilst the king is chowning down waffles in his shirtsleeves.
Hey now. Don’t be mean, you don’t have to be mean.
Yeah, we can’t imagine that ever happening, can we?
Merovign #45 –
No matter where you go…
…there you are.
“…the Constitution provides that the feds control immigration policy,..”
Okay. I don’t see that the state of Arizona has enacted it’s own version of immigration policy that contradicts the Fed policy. Does a person now have to apply to the state of Arizona in order to move there? Have they added restrictions above and beyond Federal law? I suppose a state could decide to open its international border, but AZ didn’t do that either. The policy and all the rules governing immigration still rest with the Feds.
As I said… they don’t want it enforced, take the law off the books.
Oh… I’m really slow, aren’t I.
Because it took me this long to wonder how this applies to San Francisco and “sanctuary” cities. They are actually, blatantly, defying the Federal right to control immigration policy by declaring they are exempt from those laws.
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