Since I provided my legal analysis of the new Arizona immigration law, I’ve become aware of a few interesting developments in that regard.
First, it seems that I wasn’t working off the latest version of the bill – which I should add is awfully hard to find. Indeed, perhaps we should excuse Attorney General Eric Holder and Secretary of Homeland Security Janet Napolitano for not having read it; both the Arizona Senate’s website for SB 1070, and the Arizona House’s website for the amending legislation, HB 2162, list several different versions under their “Bill Versions” tabs that do not match the bills in the other. As someone who typically plays in the federal sandbox, if someone can direct me to a verified true copy of the final operative bill, as signed and amended, my colleagues and I – indeed the entire policy community – would be grateful.
In any case, I’m please to announce that the (seemingly) final amended version I’m now working from has improved an already constitutional bill by further safeguarding civil liberties. Most notably, the ”may I see your papers?” provision was changed to read that law enforcement officials shall make a “reasonable attempt … when practicable, to determine the immigration status” only after having made a “lawful stop, detention, or arrest … in the enforcement of any other law or ordinance … where suspicion exists that the [detained] person is an alien and is unlawfully present in the United States” (amended text in bold). This establishes a higher predicate standard for police to initiate contact with any person to whom this law will be applied. In other words, there has to be an independent reason for the stop or detention before the police can ask to see proof of immigration status.
The amended bill also prohibits any consideration of “race, color or national origin” in enforcing the new law in any manner that runs afoul of either the U.S. or Arizona constitutions. Moreover, the legislature clarified that the determination of an alien’s immigration status would only be performed by Immigration and Customs Enforcement (ICE), the Border Patrol, or a “law enforcement officer who is authorized [to do so] by the federal government.”
All of these changes unquestionably improved the civil rights provisions of the law and should further protect it from successful legal challenge – again without saying anything about the law’s policy wisdom.
Second, while some analysts have argued that Arizona’s law might be preempted by federal law – although the leading case, De Canas v. Bica, 424 U.S. 351, which is 34 years old and predates more recent immigration reforms, is not favorable to that position – Roger Pilon alerted me to a 2005 case (unanimous in the judgment, less so in the reasoning), Muehler v. Mena, 544 U.S. 93, that shows that Arizona’s law doesn’t go as far as the Constitution might allow. In Mena, the police detained the inhabitants of a house whice they were searching pursuant to a lawful search warrant. While most of the officers performed the search, others questioned one detainee about her immigration status without any reasonable suspicious that she committed any crime – and certainly without having any reasonable suspicion that she was an illegal alien. The Supreme Court, in an opinion by Chief Justice Rehnquist, upheld this line of questioning. Part of the reasoning was that the “may I see your papers?” bit did not prolong the detention in any way – the search was still ongoing – but this is at least some indication that the Constitution allows immigration-related questioning without even the reasonable suspicion required by Arizona.
Third, apparently the head of ICE, John Morton, said his agency will not process illegal immigrants referred to them by Arizona officials. Morton apparently doesn’t think that laws like Arizona’s “are the solution.” Well, we at Cato certainly agree that Arizona’s law will not solve a problem that demands a comprehensive federal solution, but that doesn’t mean federal officials can simply decline to perform their duties under the law as it exists. What Morton proposes is akin to state “nullification” of duly enacted federal law – except worse, because his agency’s job is to enforce that very law. If Morton feels that strongly about our immigration laws, he should either resign or, while complying with his duties, testify before Congress about the law’s defects and lobby his boss, President Obama, to push reform.
Fourth and finally, President Obama is deploying 1,200 National Guard troops to the border and requesting $500 million more for border security. With due respect to Arizona Senators John McCain and Jon Kyl, who want even more troops and money, this approach is neither here nor there. (And it echoes Obama’s split-the-baby decision on Afghanistan, not willing to go for a whole-hog escalation but also not willing to rethink the overall policy.) Half-measures won’t do it here, Mr. President (and Congress). If you lack the heart (or have too much of a brain) for a full wall-and-militarization of our southern border – and perhaps mass rounding up and deportation of 12 million people – it’s time for a fundamental reorganization of the immigration system.
U.S. immigration (non-)policy is nonsensical and unworkable. We’re beyond the point of perestroika; it’s time for regime change.