In coming days, the hot politics over illegal immigration will play out in cold legal arguments before a federal judge.
The Justice Department has filed suit in district court seeking to block an Arizona law that will force police to investigate the immigration status of anyone they reasonably suspect of being an illegal immigrant.
The Obama administration’s main argument is that the state law can’t usurp federal law. It explains that federal resources are too limited for states to start detaining such lawbreakers on their own and handing them over to federal agents for deportation.
Oddly, that’s nearly the same point behind the Arizona law.
The state is besieged by a wave of illegal border-crossers, a result of the federal government not dedicating enough law enforcement and barriers to stem the flow or to bar employers from hiring illegals. The new law, which is scheduled to take effect July 29, aims to deter more crossings and force an estimated 460,000 illegal migrants currently in the state to leave.
President Obama could have saved the country a divisive legal battle by simply being tougher on border security, stepping up arrests of illegal migrants, and cracking down much harder on employers who hire illegal workers.
But he hasn’t done nearly enough on that score – mainly out of fear of a backlash from liberal Hispanic voters who will be critical in this fall’s election. Such fear, however, runs counter to the president’s duty to uphold laws on immigration. With such a lapse of responsibility, Arizona has now acted, inspiring dozens of states and cities to weigh similar measures.
The Justice Department focuses its arguments on the Constitution, giving the federal government the only role in setting policies on naturalization, or the authority to decide who can enter and stay in the country. That specific role is valid, but immigration issues are more than naturalization. If Obama didn’t want states involved, he would have ended a federal program called 287(g) that encourages local police to enforce federal immigration laws.
He also would have stopped working with states to cull illegal migrants already in custody for other crimes in order to deport them. And he might have tried to stop local laws that provide sanctuary for illegal immigrants in violation of federal law.
This court case will probably center on abstract legal concepts about federal preemption of state laws. Previous rulings are mixed on when preemption applies. Right now, for instance, Obama’s arguments about the Arizona law are mere speculation about a possible diversion of federal resources to help the state detain suspects. Judges, however, usually feel restrained to act on a hypothetical point, especially in thwarting a popular law.
Arizona was also careful to anchor its statute in federal law, aiming to complement Washington’s efforts rather than work against them. No new requirements, for example, are imposed on aliens. (The Justice Department decided not to make a federal case out of concerns about possible racial profiling by Arizona police.)
The law, SB 1070, also does not preempt the federal role of defining the admission, authorization, or deportation of aliens. In fact, it builds on Supreme Court rulings that have long recognized the rights of states to discourage illegal immigration.
Rather than see the Arizona law as an obstacle to better enforcement, Obama must start to work better with the states as partners. As the often-quoted federal judge Learned Hand once wrote, “it would be unreasonable to suppose that [the federal government’s] purpose was to deny itself any help that the states may allow.”