A whole lot of debating going on about the Arizona law to enforce the immigration rules already on the books…mostly from the “expert” talking heads like Jon Stewart and other “reporters,” but lets get down to a few of the nuts and bolts. On the legal side Jonathan Adler writes about the preemption argument that much of the legal challenges will go after. He quotes Jack Balkin who wrote:
There is a much stronger argument that the new Arizona law, while purporting to be helpful, actually sticks a thumb in the eye of the federal government by engaging in draconian measures. The Arizona legislature appears to be saying, in effect: “since you won’t police the borders, we will, and if you don’t like it, pass some new legislation.” If this is the point of the new Arizona law, then the law isn’t really an attempt at cooperation but an attempt at provocation and one-upmanship, and the chances that it is preempted increase.
Hmmm, where have we seen this kind of State practice before? A-ha! In my own state. Adler:
If I understand him correctly, he is suggesting that the preemption question turns, in part, on whether a state is seeking fill a gap left by federal inaction in the hope at provoking a federal response, such as more comprehensive federal legislation. Given that I focus much of my time on environmental law and policy, this is a particularly provocative claim, as it would seem to apply to many recent state climate change enactments. Various states have adopted climate change policies even though states are incapable of having an appreciable effect on atmospheric concentrations of greenhouse gases. One of the defenses of these laws is that the federal government has abdicated its responsibility to address climate change, so states should be free to act, even if that means adopting inefficient measures, as such actions could spur a federal response. So it was argued that California should be allowed to adopt greenhouse gas emission standards for motor vehicles because the Bush Administration had failed to act. Further, the prospect of variable state standards might prompt the auto industry to support federal action, much as state-level environmental controls in the 1960s prompted the auto industry to support federal air pollution legislation.
Now, onto the “show me your papers” argument. Our President, being his oh so helpful self, interjected himself into the debate when he proclaimed that the average Hispanic person will get stopped by the police for getting an ice cream. Glad he was prudent in waiting for his own Justice department opinion.
Either way, its all bulls&%t. We can’t stop you for the way you look now, and we won’t be able to tomorrow. There has to be a reasonable suspicion that a crime has been committed ie. infraction, misdemeanor, or felony. It sucks being stopped by the police, but its necessary, as Jonah Goldberg illustrates:
It seems that whenever government expands either its powers or its enforcement efforts, you should be worried that it could go too far. But such worries have to be balanced against necessity.
I agree that there’s something ugly about the police, even local police, asking citizens for their “papers” (there’s nothing particularly ugly about asking illegal immigrants for their papers, though). There’s also something ugly about American citizens’ being physically searched at airports. There’s something ugly about IRS agents’ prying into nearly all of your personal financial transactions or, thanks to the passage of Obamacare, serving as health-insurance enforcers.
In other words, there are many government functions that are unappealing to one extent or another. That is not in itself an argument against them. The Patriot Act was ugly — and necessary.
Consider California’s decision to “lead by example” on global warming. Environmentalists argued that Washington was negligent in fighting climate change at the federal level. Hence California had no choice but to tackle a national problem at the state level. California implemented standards that are considerably more strict than those required (for now) by Washington.
Arizona’s law is more humble than that. While California pushed a stricter standard than the one Washington was enforcing, Arizona seeks to enforce the federal law that Washington isn’t enforcing.
The constitutional and legal issues make the parallel less than perfect, but the principle remains the same. Indeed, I’d wager that the costs of illegal immigration — economic, social, and environmental — on Arizona dwarf the costs on California from global warming, at least so far.
President Obama seems to get this, sort of: “Indeed, our failure to act responsibly at the federal level will only open the door to irresponsibility by others. And that includes, for example, the recent efforts in Arizona.”
This is awfully tendentious, since he takes it as a given that Arizona’s effort to take some responsibility for a problem is best understood as “irresponsible” — as if continuing to do nothing at the local level while too little is done at the federal level would be more responsible. Of course, “irresponsible” is lavish praise compared with the charges of “apartheid” and “Nazi” coming from some opponents of the law, including Los Angeles cardinal Roger Mahony.
Regardless, Obama is right insofar as Arizona’s effort is the inevitable consequence of Washington’s inability to take illegal immigration seriously.
One last thing….if you want to cry and wail about for the poor downtrodden illegals and our civil liberties, read the damn statute first.
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