Arizona’s Victory

By Rich Lowry
Tuesday, June 26, 2012

Upon its passage, Arizona’s immigration law was considered so outlandish that Attorney General Eric Holder famously rushed to condemn it without reading it.

Now the Supreme Court has read the law and rejected Holder’s case against its central element, the so-called “show me your papers” provision stipulating that police officers should check on the immigration status of people suspected of being in the country illegally.

If it were possible for a statute to be tarred, feathered, and run out of town on a rail, such would have been the fate of Arizona’s law. President Barack Obama inveighed against it. The state was boycotted. Otherwise reasonable people lost their heads. Former Bush speechwriter Mike Gerson thundered that the statute was un-American. Whether the law was deemed racist, fascist, or merely ill-advised, it was an article of faith that it was very, very unconstitutional.

When it got to the Court, though, it wasn’t even a close call. All eight justices ruling in the case — Justice Elena Kagan recused herself — turned aside the Justice Department’s preemptive challenge to the provision’s constitutionality. Given all the commentary recently from the left about how partisan the Court is and how 5–4 decisions undermine its legitimacy, the Court’s unanimous agreement that one of the most controversial laws in the land can go into effect should comfort those liberals professing to be worried about the highest court’s future.

The decision is a win for Arizona, although a limited and ambiguous one. The Court left open the possibility for future challenges based on how the law is enforced and, in a divided decision, struck down three other provisions on grounds that they interfere with the federal immigration system. If Arizona can’t claim total victory, it can claim vindication vis-à-vis all its hysterical critics. On the most important question, Governor Jan Brewer had a better grasp of the Constitution than the president of the United States.

What the Arizona-haters always ignored is that there are “show me your papers” provisions in the federal law. As Justice Anthony Kennedy recounts in his opinion for the majority, the federal government requires that aliens carry proof of registration. An extensive apparatus exists to facilitate state and local enforcement of the immigration laws. Congress has said that no special training or formal agreement is necessary for state officers to “communicate with the [federal government] regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States.” The federal government runs a Law Enforcement Support Center available 24 hours a day to provide “immigration status, identity information and real-time assistance to local, state and federal law enforcement agencies.”

If the feds didn’t want to get any inquiries from police officers in Arizona, they should have written that loophole into the law. Certainly, Arizona’s statute is more in keeping with the spirit of federal immigration laws than the Obama administration’s selective enforcement with an eye to doing just enough to cover itself politically. It is bizarre that, with millions of people in the country in defiance of federal laws, the man charged with faithfully executing them is worried that Arizona police will do too much to assist the federal government by turning up illegal immigrants in the course of their work.

In his scorching dissent from the decision overturning portions of the Arizona statute, Justice Antonin Scalia emphasizes federal nonenforcement of the immigration laws. The Obama administration’s real beef with Arizona isn’t that it contradicts federal law so much as that it contradicts its own choice to ignore federal law as much as practical. Arizona, Scalia notes, has been particularly hard hit by the federal government’s decision to enforce at the border primarily in California and Texas: “Must Arizona’s ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement — or, even worse, to the Executive’s unwise targeting of that funding?”

Arizona had the temerity to answer “no.”