Responding to More Bogus Restrictionist Arguments by Arizona's Defenders

Over at The Corner on National Review Online, Ramesh Ponnuru raises two questions about my last immigration column in which I rebutted the bogus constitutional claims that restrictionists make to defend Arizona's harsh, new immigration law. (For convenience, let's just pick a nick-name for this law and call it the Arpaio Law in honor of the Arizona sheriff whose "law-enforcement" tactics include making a pregnant suspected undocumented alien deliver a baby in shackles.)

First Question: if, as I argued, it is unconstitutional for states to pass laws whose primary purpose is regulating immigration flows -- even when these laws are patterned after federal laws -- then why, asks Ramesh, did courts uphold Arizona's 2007 law sanctioning employers who hire illegal immigrants?

Answer: It is true that the 9th Circuit Court upheld that law, but the matter is now before the Supreme Court – so the issue is far from settled. However, legal scholars of varied political persuasions believe that the Supremes too are likely to uphold this law for two reasons – neither of which applies to the Arpaio Law:

One, the law requires all Arizona employers to use E-verify to check the legality of all their new workers, not just some employers or some workers. Hence, it does not run afoul of the Constitution's equal protection clause. The Arpaio Law, by contrast, empowers Arpaio and his minions to demand papers of only those who raise "reasonable suspicion." Regardless of what defenders of the law claim, this can't help but lead to racial profiling of brown-skinned, non-blue-eyed furhners (like Ramesh and myself) who speak with an accent (unlike Ramesh, but like myself) as I argued here. This is constitutionally problematico – but opponents of the Arpaio Law actually can't make that argument in court until the law goes into effect. Hence, that's not the reason that the courts will throw out this law now, although they might later if it doesn't get thrown out first for the second reason stated below.

Two, the 2007 law passed muster not because, like the Arpaio Law, it mirrored the federal government's language concerning employer sanctions in the 1986 Immigration Reform and Control Act.  The reason is that even though IRCA explicitly barred states from sanctioning employers who hire illegals – it made an exception when these laws are part of a state's general licensing regulations. Arizona used this loophole and made E-verify a general licensing requirement, thereby making it legally clean – although as a policy it still stinks to high heaven because it forces Arizonians to get a permission slip from the government for employment.

There are no similar loopholes that the Arpaio Law can use to cover its derriere. The very existence of a federal law requiring immigrants to carry their papers implicitly serves notice to states that they have no business passing their own laws because immigration is a constitutionally protected federal function. This, I am told by legal scholars of varied political persuasion, is a near slam-dunk legal objection. (Law junkies who want to look up the legal doctrine under which this objection falls can Google "implicit field pre-emption." Everyone else, read on.)

But the real kicker is this: Ramesh and his NRO comrades insist that the Arpaio Law's your-papers-please provision is totally innocuous because all it does is enforce Uncle Sam's own law – nothing more, nothing less.

Bzzzzz. Incorrect.

Actually, it goes beyond the federal law, which only authorizes federal officials to check someone's papers when there is a reasonable suspicion that the person might be in the country illegally. But the Arizona law requires state authorities to do so – or risk getting sued by private third parties. There is no such right to sue in the federal law. And the gulf between "authorizing" and "requiring" is as big as the distance between Tucson and Juarez.

That's because "authorizing" leaves discretion for enforcing the law to individual officers. Say, for instance, that a police officer is chasing a violent criminal who is trying to get away after robbing an old lady and shooting her Chihuahua when he spots Jose, a poor Spanish-speaking, Hispanic male jaywalking en route to his landscaping job. Under the federal law, the officer wouldn't have to stop to check Jose's papers because he has a "reasonable suspicion" that Jose is illegal. He can continue to pursue the homegrown thug who poses a far more imminent danger without fearing a lawsuit.

Granted, this is an implausible, facetious scenario. But the point is that the federal law allows both state and federal officials to set their own law enforcement priorities depending on the facts on the ground. The Arpaio Law has the express purpose of taking that ability away from both. It will not only force state law enforcement officials to apprehend illegals on the slightest pretext, but then it will dump them in the feds' lap for deportation, forcing the feds too to divert resources from other priorities like, say, fighting terrorism. It is highly unlikely that courts will let Arizona get away with this kind of bullying of Uncle Sam. (Assignment Number Two for legal junkies: Google "conflict pre-emption" to check out the legal doctrine under which this objection would be covered. And for a fuller and more erudite elaboration of all of these points and more, check out, "Testing the Limits: A Framework for Assessing the Legality of State and Local Immigration Measures," by Muzaffar Chishti, Director of NYU Law School's Migration Policy Institute.)

Second Question: I wrote in my column that the opening sentence of the Arpaio Law says: "The intent of this act is to make attrition [of the immigrant population] through enforcement the public policy of all state and local government agencies in Arizona." To this, Ramesh asks:

"(I)sn't there a word missing in that 'drive out immigrants' bit? Starts with an 'I'. …"

Answer: Ha, ha. Very clever. I'll take a wild guess and say that the word Ramesh has in mind here is "illegal." But, no, it is not missing. I deliberately left it out. And the reason is that the Arpaio Law will cause the attrition of both the legal and illegal population alike because the racial profiling it unleashes will open both up to Arpaio-style harassment. What's more, many legal immigrants and even naturalized citizens in the Latino community are related to undocumented workers – they are their mothers, daughters, fathers, sons, aunts, uncles, cousins, some of whom are undocumented because the feds have not been able to process their visa extensions in time. Many of the legals will find it hard to stick around if their loved ones are hounded out.

Of course, the loss of legals won't bother Ramesh's ultra-restrictionist National Review comrade and director of the Center for Immigration Studies, Mark Krikorian, who wants a moratorium on all immigration and blames immigrants for every problem in America – including raising global greenhouse gas emissions. Indeed, if Krikorian had his way, Ramesh, a first-generation immigrant, wouldn't even be here today.

Surely, this should bother Ramesh enough to direct a few pointed questions toward Krikorian too.

(My bloggingheads.tv showdown with Krikorian here.)