Restraining Arizona, Unleashing the President

The Supreme Court overlooks the natural and fundamental freedom to associate.

When the Obama administration decided that it had no interest in preventing the movement of undocumented aliens from Mexico into the southwest United States, the State of Arizona decided to take matters into its own hands. Based on a novel theory of constitutional law, namely, that if a state is unhappy with the manner in which federal law is being enforced or not being enforced, it can step into the shoes of the feds and enforce federal law as it wishes the feds would, it enacted legislation to accomplish that.

The legislation created two conflicts that rose to the national stage. The first is whether any government may morally and legally interfere with freedom of association based on the birthplace of the person with whom one chooses to associate. The second is whether the states can enforce federal law in a manner different from that of the feds.

Regrettably, in addressing all of this earlier in the week, the Supreme Court overlooked the natural and fundamental freedom to associate. It is a natural right because it stems from the better nature of our humanity, and it is a fundamental right because it is protected from governmental interference by the Constitution itself. Freedom of association means that without force or fraud you may freely choose to be in the presence of whomever you please, and the government cannot force you to associate with someone with whom you have chosen not to associate, and the government cannot bar anyone with whom you wish to associate from associating with you.

Without even addressing the now-taken-for-granted federal curtailment of the right to associate with someone born in a foreign country and whose presence is inconsistent with arbitrary federal document requirements and quotas, the Supreme Court earlier this week struck down three of the four challenged parts of the Arizona statute, which attempted to supplant the federal regulation of freedom of association with its own version. It did so because the Constitution specifically gives to Congress the authority to regulate immigration, and Congress, by excluding all other law-writing bodies in the U.S. from enacting laws on immigration, has pre-empted the field.

The court specifically invalidated the heart and soul of this misguided Arizona law by ruling definitively that in the area of immigration, the states cannot stand in the shoes of the feds just because they disapprove of the manner in which the feds are or are not enforcing federal law. The remedy for one's disapproval of the manner of federal law enforcement is to elect a different president or Congress; it is not to tinker with the Constitution.

Federal law cannot have a different meaning in different states, the court held. And just as the feds must respect state sovereignty in matters retained by the states under the Constitution (though they rarely do), so, too, the states must respect federal sovereignty in matters that the Constitution has unambiguously delegated to the feds.

The court neither upheld nor invalidated Section 2B of the Arizona statute -- which permits a police inquiry of the immigration status of those arrested for non-immigration offenses -- because the court found that, just as when the police stop a person for a violation of state or local law they may check their computers for outstanding warrants for the person they have stopped, so, too, they may check their computers for the person's immigration status.

Shortly after the opinion came down, the Obama administration announced that it will cease providing Arizona police with the immigration status of persons in that state, and it will not detain anyone arrested by Arizona police for immigration violations unless those violations rise to the level of a felony, which undocumented presence in the U.S. is not. Thus, this constitutional rebuke to Arizona has become a personal license for the president. He now has demonstrated that he will not faithfully enforce federal law as the Constitution requires. He will only enforce the laws he agrees with.

So, since the Arizona police cannot arrest and incarcerate anyone for undocumented presence and since they cannot deliver anyone so arrested to the feds, what legitimate governmental purpose will be served by what remains of Arizona's law? None. But the police still will harass any dark-skinned person in Arizona that they please.

Have we lost sight of the perpetual tension between human freedom and human law? Either freedom is integral to our nature, as Thomas Jefferson wrote in the Declaration of Independence, or it comes from the government, as the president and the Supreme Court demonstrated they believe this week. If it is integral to our nature, no government can tell us with whom we may freely associate. If it comes from the government, we should abandon all hope, as the government will permit the exercise of only those freedoms that are not an obstacle to the contemporary exercise of its powers.

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  • anon||

    Congrats gentlemen, you're now free to be taxed for not buying something.

    Freedom: 0
    Government: 40000000000000

  • Jake W||

    Not sure if you've calculated their score correctly but it is up their. Maybe one point for every piece of legislation since the bill of rights and one point for every tax dollar collected since 1913.

  • BigT||

    AZ could just hold anyone with suspect citizenship until they get word from the Feds.

  • wareagle||

    isn't indefinite detention limited to the feds?

  • Mr. FIFY||

    Just another portent of the future.

    We're fucked.

  • Whiterun Guard||

    I am so disappointed in my country today. This must be how a Canadian feels every day :(

  • Dylan||

    You mean the three libertarian Canadians.

  • RFID||

    ??

    I thought one of them died? There's still three?

  • burnt||

    I work with a Canadian who left because his wife got cancer and he didn't want her to die waiting for treatment. His response was fuck it, might as well go back to Canada now.

  • Dylan||

    The White House, the Supreme Court, and the State of Arizona all disagree with each other. Yet they all find different ways to be wrong.

  • Loki||

    He now has demonstrated that he will not faithfully enforce federal law as the Constitution requires. He will only enforce the laws he agrees with.

    So in the case of medicinal MJ he has to enforce the law whether he agrees with it or not, but in this case he doesn't. Got it. Why don't we just dispense with the political theater already and just declare ourselves a monarchy already?

  • DarrenM||

    So a state cannot enforce federal law? If the Executive Branch refuses to enforce a federal law, it doesn't get enforced? Wouldn't this mean that if there is a federal law a state disagrees with, it has every right to direct state law enforcement to ignore that law since it is not allowed to enforce that law to begin with?

  • d||

    If only. The way it will most likely play out is with the federal govt telling states they must enforce the federal laws it wants enforced, but that they cannot enforce the ones it wants ignored.

  • Jake W||

    Back to Loki's post.

  • Dr. Thaddeus Tingleberry||

    Let's all go down to the soda shop while this country turns into Mexico.

  • Jake W||

    Oh joy! Just for this occasion, I think I'll get a Jarritos!

  • ||

    k struck down three of the four challenged parts of the Arizona statute, which attempted to supplant the federal regulation of freedom of association with its own version. It did so because the Constitution http://www.lunettesporto.com/l.....c-3_5.html specifically gives to Congress the authority to regulate immigration, and Congress, by excluding all other law-writing bodies in the U.S. from enact

  • tee shirt pas cher||

    Federal law cannot have a different meaning in different states, the court held. And just as the feds must respect state sovereignty in matters retained by the states under the Constitution (though they rarely do), so, too, the states must respect federal sovereignty in matters that the Constitution has unambiguously delegated to the feds.

  • joy||

    If it comes from the government, we should abandon all hope, as the government will permit the exercise of only those freedoms that are not an obstacle to http://www.petwinkel.com/pet-d.....-c-23.html the contemporary exercise of its powers.

  • Rost||

    This piece very nicely articulates one narrow part of the immigration issue, but it leaves the rest untouched. It this, it is like much of libertarian discourse, more exegesis than argument. Is the immigration issue really a simple matter of freedom to associate? Has the judge not noticed that immigrants become voters, demanders of government services, exploiters of anti-discrimination laws etc.? What good is a right to associate if there is not a right NOT to associate? From TV interviews I've seen, the judge appears to be a decent and generally well-meaning man. But articles like this, so indifferent to the lived reality of the people involved, do little to help anyone find a solution.

  • ||

    Much the same paragraph could have been written in 1850 about slavery or in 1950 about Jim Crow.

    The judge's "indifference" is to the haves in this question. You, on the other hand, show a remarkable indifference to the have nots. The judge's indifference is in deference to securing equal individual rights. The source of your indifference is less clear.

  • Rost||

    MikeP, please help me understand. Inhabitants of a small town in southern Arizona must accept no matter how many newcomers, no matter how different from them, because the inhabitants have no right to exclude? End of story?

  • ||

    Rost, I full well realize that Arizona's politics are screwed up because of all the Midwesterners that have moved there and discovered they don't like the fact that Arizona and Sonora have had an effectively open border for 290 of the last 300 years. But, no, Arizona towns should not be able to exclude such newcomers by legislation.

    Sure, they could refuse to sell the newcomers property, or they could make them effective outcasts. But they cannot legitimately deny them the right to pass through the town or to reside in a willing landlord's private building or to work in a willing employer's private workplace.

    Would that they could at least keep the Midwesterners from voting for a decade or two, like the international migrants who manage to get legal residence and citizenship. Arizona's policies around migration might be a lot less insane and more like their neighbors to the east and north. Their neighbors to the west, of course, saw a party immolate itself over migration issues. It's hard to do worse than that. But Arizona sure tries to.

  • Rost||

    MikeP, I admit that on the field of individual rights I cannot come up with an effective response to your point. But it still seems to me that your position amounts to letting unlimited numbers of non-Americans enter the country, and that that will have a predictable result: provoking a reaction against them as the native Americans endure the inconveniences, costs etc. of the newcomers' presence. Then you will have the comfortable privilege of denouncing the natives as "racist" and blaming them for the violence. I can't help thinking that there's a whole dimension of reality that is missing from your way of looking at the issue.

  • ||

    People have always been reluctant to accept newcomers. That was even true when those damn papists were swamping the nation's gunwales.

    It's also true about people moving in large number between states, as evidenced by the Great Migration or present-day gentrification of once-affordable neighborhoods.

    I see zero moral and little economic distinction between the former and the latter. Legally, of course, citizens can keep noncitizens out. But, politically, the migration of people who can't vote should generally be preferred by the natives to the migration of people who can vote. Culturally, however, each case is different and needs to be judged on its own terms.

    It sounds like you think the dimension of reality missing from the rights-oriented way of looking at the issue is the cultural dimension. I would say the American culture, at least, is to defer to individual rights when they conflict with collective culture.

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