The Supreme Court will probably judge the Arizona immigration law as constitutional, given the sad state of American constitutional law, even though it infringes on the economic liberty of Arizonans and expands the government’s role further into their most intimate economic decisions.
The law modifies a mandatory E‑Verify provision that makes all Arizonans ask the federal government for permission to be hired. Worse, E‑Verify falsely labels about 1 percent of legal Americans as unauthorized workers, sending them on a bureaucratic odyssey when they should be gainfully employed. As a result, E‑Verify is not being used for about 30 percent of new hires in Arizona, moving much of that state’s workforce into the informal economy.
The Arizona law also strengthens the so‐called business death penalty. This two‐strike policy — under which second‐time business offenders that hire an unauthorized worker or don’t use E‑Verify for all hires — essentially kills a business by taking their business licenses. E‑Verify and the business death penalty make hiring workers more expensive and uncertain, which diminishes job creation.
Arizona passed this law intending to aid the economy. It likely had the opposite affect. Roughly 100,000 unauthorized immigrants have been driven from Arizona by the immigration law — bringing their businesses, labor, and purchasing power with them. The unemployment rate in Arizona has been at or above the national rate for years partly because of this law.
A major justification for the law was the so‐called “illegal immigrant crime wave” in Arizona. But according to the FBI’s Uniform Crime Reports, the violent and property crime rates in Arizona on the eve of its passage were the lowest since 1971 and 1965, respectively. County and jurisdictional crime rates vary a little, but they tell the same general story: There was no immigrant crime wave.
Arizonans want to hire, rent to, and sell products to peaceful immigrants who are, unfortunately, unauthorized. Millions of Arizonans make that choice daily despite their actions at the ballot box. The Arizona law regulates Arizonans, harms their economy, and was created to fight phantom problems. It’s tempting to blame Arizona, but the source of the problem is restrictive federal immigration law that makes laws like Arizona’s possible. Our immigration laws and Arizona’s prevent most peaceful and healthy people who want to move here from doing so legally. They are both bad public policy regardless of their constitutionality.