The Radicalism of the Anti-Arizona Suit

The state’s immigration law is reasonable; the suit against it isn't.

Rich Lowry
Thursday, July 15, 2010

If nothing else, the state of Arizona has smoked out the Obama administration.

To make the case that the Arizona immigration law conflicts with, and therefore is preempted by, federal law, the Justice Department has to make an extraordinary claim — that the federal laws as written don’t matter so much.

The drafters of the Arizona statute, S.B. 1070, were careful to mimic specific federal laws, but that’s not good enough. The state’s law would pass constitutional muster only if it tracked exactly with the executive’s enforcement priorities. As the suit puts it, “S.B. 1070’s mandatory enforcement scheme will conflict with and undermine the federal government’s careful balance of immigration enforcement priorities and objectives.”

In other words, such mandatory enforcement of the law conflicts with the executive’s discretionary enforcement of the law. If Arizona’s statute is in keeping with the letter of the laws as passed by Congress, so what? The executive can selectively pick and choose which elements of those laws to honor, and then on that basis quash state statues even if they mirror the handiwork of Congress.

It’s as if Congress is merely an advisory body in this area, and the administration wants to lift the power over immigration policy out of Article 1 of the Constitution and deposit it in Article 2. The administration is forced into this sweeping argument out of its desperation to overturn the Arizona law and its limited grounds to do so on any common-sense basis.

The courts have upheld the ability of state law enforcement to check on a person’s immigration status, ask for his documents, and confirm his status with the federal government. And it’s simply not the case that any state statute regarding immigration is preempted by federal law. In 1976, the Supreme Court unanimously upheld a California law prohibiting employers from hiring illegal aliens against a preemption challenge.

By any reasonable standard, Arizona is assisting the federal government. The state is identifying people that Congress has deemed to be in the country unlawfully and bringing them to the attention of the feds. Why would the federal government even want to cry foul?

It all comes back to that delicate balance. The suit says, “S.B. 1070 conflicts with and otherwise stands as an obstacle to Congress’s demand that federal immigration policy accommodate the competing interests of immigration control, national security and public safety, humanitarian concerns, and foreign relations.”

And all that amounts to an indirect way of saying that the Obama administration is willing to tolerate the presence of millions of illegal aliens in this country, and that, as far as it’s concerned, this preference constitutes the unalloyed law of the land.

There would be an unassailable method for the federal government to push back against Arizona. Congress could repeal 8 USC 1304(e) and 1306(a), the provisions in the federal code invoked in the Arizona statute (they make it illegal for aliens not to carry registration documents and for aliens to fail to register). Then, Congress could pass an immediate amnesty, relieving the current population of illegal aliens of the burdens of their unlawful presence.

Simple and clean. But not easy, since it would require the assent of democratically accountable legislators. The Obama administration prefers to rely on the sheer assertion of administrative authority. Its suit against Arizona posits a kind of virtual amnesty. If its claims pass muster in the courts, the most aggrieved institution shouldn’t be the state of Arizona, but the United States Congress.