Last month I bemoaned the poor quality of the Supreme Court’s interminable health care oral argument. But this month the Court redeemed itself in the slightly prolonged argument over the Arizona immigration law. The law has been put on hold by the lower courts out of concern that it conflicts with the federal government’s plenary (exclusive) jurisdiction over immigration. The Obama Justice Department argues that the states cannot be allowed to detain suspected illegal immigrants because it has the sole authority to do this (or more accurately, not to do it). But this is not really the issue. Arizona’s law does not regulate immigration, the decision to admit, or refuse to admit foreigners into the U.S. Rather it simply allows the state to arrest people who are already in the U.S. illegally after checking with the Department of Homeland Security (DHS). So Arizona is supplementing, not conflicting with DHS’ enforcement efforts. The Obama administration has the freedom not to enforce federal immigration law, and our collective remedy for that problem is to elect Romney president and hope his DHS will do more. But the Court ruled in 1976 in DeCanas v. Bica that states can enact laws to crack down on illegal immigrants. And Arizona has simply taken that further than any other state.
The key provision of the Arizona law would allow police to ask anyone who is detained for suspicion of committing any crime to produce their documentation if they appear to be in the country illegally. “Civil libertarians” hate this because it means race and ethnicity will be taken into account. The vast majority of illegal immigrants in Arizona are Hispanic and are from Mexico. Any police officer can reasonably consider these facts when they pull over a speeding motorist. If there are other factors that also point toward the person being illegally in the country (such as not having a valid drivers’ license, or driving a crowded van full of fellow Hispanics, or driving near the border, or having a Mexican license plate), then the officer can detain the suspect long enough to call DHS and ask for the person’s name and other identification data to be run through computer checks to see if he or she is in the country legally. If it is determined by DHS that the person is not legal, then DHS could ask the police officer to arrest him or her so that he or she can be turned over to federal authorities to be removed (deported). If DHS does not want to commence removal proceedings, then Arizona would not be able to detain the person any longer on the immigration charge.
Arizona’s lawyer told the justices the DHS telephone check can be done in 11 minutes. The Solicitor General, Donald Verilli, who sounds as if he consumed two glasses of wine before entering the courtroom, said it could take up to an hour if there is a “queue” of such calls on hold. None of the justices seemed to be too concerned about a one hour detention. More importantly, none appeared to buy the Government’s argument that the states are “preempted” from any enforcement of federal laws against illegal immigrants traveling throughout the country.
If this provision of the Arizona law is upheld, as I think very likely, then the inquiry will turn to the other controversial provisions of the law: can Arizona forbid illegal immigrants from becoming employed and requiring immigrants to carry alien registration cards with them at all times (which is already required under federal law). There was no real opposition to the second provision voiced at the argument, though it was heavily briefed by the parties. The Immigration Reform and Control Act (IRCA) preempts states from enacting laws against employers who hire illegal immigrants, but Arizona’s law prohibits the employees from being employed and does not sanction employers who hire them. This is a critical distinction. I think it is likely the Arizona law will be upheld. I don’t have an opinion about the third provision, making it a crime for immigrants not to have their registration cards on them at all times. I don’t see how immigration law can be enforced if legal immigrants are not required to carry ID.
This is the most auspicious development for immigration enforcement in a long time, certainly since the Swift Beef raid in 2006. It’s one thing for states like Arizona to pass laws, it’s another to get them upheld after being struck down. If the Court upholds the Arizona law, then similar laws now on hold by federal Courts enacted by Georgia, Alabama, South Carolin and Indiana, will take effect. We have seen a significant exodus of illegal immigrants from Alabama in the last several months after the partial enforcement of its anti-illegal immigration law. So these laws really work. Illegal immigrants are either moving to other states, or “self-deporting” out of the country. A collateral benefit is that unemployment in Alabama has fallen significantly since its law was enacted. Part of the reduction is certainly the national trend, but part is also the departure of illegals from the labor force.
I look forward to revisiting this when the Supreme Court issues its opinion in late June.