Rich Lowry on the administration's obtuse move to sue Arizona
The legal case against the Arizona immigration law is unassailable.
The Justice Department and the American Civil Liberties Union argue that the law impermissibly “conflicts with federal law and enforcement priorities,” in the words of the ACLU suit. And who can disagree? Clearly, Arizona’s priority is to enforce the nation’s immigration laws; the federal government’s priority is to ignore them as much as possible. Case closed.
In his immigration speech last week, Pres. Barack Obama warned ominously of a “patchwork” of immigration laws arising as “states and localities go their own ways.” Oddly enough, sanctuary cities acting in open defiance of immigration laws have never notably been the object of his wrath. Who’s to judge the good-hearted people of Berkeley? There’s only one part of the dismaying patchwork that stirs Obama’s cabinet to outrage, and his attorney general to legal action — Arizona’s commitment to enforcement.
The legal fight between the federal government and Arizona will be a case of dueling insincere arguments. The federal government will pretend that it objects to Arizona’s supposedly creating a wholly new scheme of immigration regulation, when its real problem is that the state wants to take existing law too seriously.
Arizona will pretend that it is acting in accord with longstanding federal intent, when in fact its law never would have been necessary if the feds intended to enforce their own statutes. Instead, the federal government has adopted what the Justice Department calls — in a euphemism for the ages — “balanced administration of the immigration laws.”
The case against Arizona rests on “preemption,” the notion that federal law “occupies the field” on immigration and prevents states from passing their own regulations. In the context of the initial gusts of outrage at the Arizona law, this is a somewhat technical transgression. Couldn’t Eric Holder have nailed Arizona for its nascent Nazism?
Arizona has been here before. Pro-immigration groups sued over its workplace enforcement law passed in 2007. All the same arguments were mustered about federal preemption. A U.S. district-court judge (upheld by the appeals court) rejected them because the state law so closely tracked the federal law and didn’t contradict its stated purpose.
The drafters of the new law attempted to meet these same standards by directly drawing on federal statutes for its definition of immigration offenses. The courts have long upheld the right of states to make arrests for violations of federal immigration law, and the Supreme Court in a 1976 decision said federal immigration law didn’t intend “to preclude even harmonious state regulation.” Regardless, the courts will now decide.
The Obama administration hasn’t always been such a stickler for national uniformity. Last year, it reversed Bush-administration policy and stopped prosecuting violations of federal marijuana law by users and suppliers of medical marijuana in states that have legalized it. The upshot is that the direct violation of federal drug laws is acceptable at the state level, whereas the direct enforcement of federal immigration laws at the state level is not.
The animus toward Arizona is nakedly political. Obama, the former hopemonger, has become a moveable feast of cynicism. He promised that he’d move comprehensive immigration reform in his first year in office. This became known as la promesa de Obama in the Latino community, and it suffered the same ignominious fate as his pledges to enact a net spending cut and to comb through the federal budget line by line. La decepción de Obama.
According to Gallup, Obama’s approval rating has held steady this year among whites (41 percent) and blacks (91 percent). But it has dropped from 69 percent to 57 percent among Latinos. On cue, Obama gave an immigration speech touting comprehensive reform even though there’s no legislative path forward, and his attorney general sued Arizona. If the thoroughly political Holder thought it would help, he’d sue John Boehner.
And so the battle is joined, with the federal government making the plea — please, whatever you do, let our immigration laws molder on the books.
This is all about politics. Barry & Company want to push through their version of immigration reform which is hardly a reform. It will be much like the failed comprehensive immigration reform that was tried back in 2006 by Senators McCain and Kennedy. That reform was basically amnesty-lite; it would focus more on regularizing illegal aliens here now, and less on enforcement. Recall, if you will, the amnesty passed by President Reagan back in 1986, and the promise that went along with that mistake. The promise was that there would be tougher enforcement of America's immigration laws. After the amnesty was approved, the Congress seemingly forgot their promise to focus on border enforcement.
The issue of illegal immigration has been a political football played by both sides of the aisle. Republicans enjoy the cheap labor from the illegal aliens, and Democrats hope to cement them as a voting bloc. All the citizens of America have ever demanded is that we enforce the laws on the books. Neither side wants to do that, which has led Arizona to take these steps. We are not usurping the federal government's power to prosecute immigration laws. We are pushing them to do it.
Critics of the law claim that it is based on racial profiling. That is an outright lie. If you read the law, racial profiling is specifically prohibited. The police aren't allowed to go up to anyone, and demand to see their proof of citizenship or legal residency. The law outlines the steps that must be taken to even check on the immigration status of a person within the state's borders. First, there has to be an infraction; that is, the person in question has to have broken the law. The police will ask for identification (which they always do, and according to the law, anyone over the age of eighteen is REQUIRED to carry an ID on them at all times in public), and if the person they've stopped or approached lacks that identification then they're subject to arrest. THEN and only then may an officer check their immigration status. IF they have a legal, valid form of ID then the officer can't check on their status. End of story.
But the lawsuit doesn't address the assumption that this law will lead to racial profiling. No, it's based on the preemption argument; that Arizona is taking a power from the federal government, and undermining their immigration enforcement efforts. (OK, stop laughing. I know the federal government isn't doing that job, at least not as they should be.)Further reading of the law states that if the police do detain someone here illegally, that person is to be turned over to Immigrations and Customs Enforcement (ICE) for processing. The moment we hand them over to ICE, it's then in the hands of the federal government. Is that usurping their power? No, it isn't. The new law seeks to reinforce the federal law. If you read the law you'll note that it sounds familiar; that it sounds very much like the federal law.
One can even say that the law is rather redundant. Local law enforcement have been allowed to deal with illegal immigrants for years, as empowered by the federal law. California has a law that is much tougher than our own, and instructs their law enforcement to work hand-in-hand with federal immigration officials to enforce the federal immigration laws. In fact, that law also exclusively outlaws "sanctuary cities" and California has more than a couple of those that flout the law on the books. No one threw a hissy fit when California passed that law back in the late 1990s. But God forbid Arizona do it.
This is an exercise in the absurd. The federal government basically has no leg to stand on. As Mr. Lowry notes, the Worker Sanctions law passed by Arizona back in 2006 was upheld in federal court because it mirrored the federal law closely, and it abides by the definition of the law. That is exactly how this is going to go. And this won't be over in a month, either. Some prognosticators (amateurs, for lack of a better term) claim that this will be all said and done by November. No, this will drag out for the next year, or so, and possibly longer depending on the appeals that will be filed at the end of this initial challenge. In the end, the Arizona law will be upheld because we're not usurping federal power. We're reinforcing it.