By Bill Boyarsky
The news coverage of the Obama administration’s efforts to stop the Arizona immigration law is missing the point by focusing on politics rather than the merits of the federal government’s case.
Politico declared, “The dust from the Department of Justice lawsuit … is just starting to settle, but the reflexive sense among strategists on both sides is that it will be a net negative for Democrats this fall.”
“The federal-state high noon in Arizona is a political powder keg—at least in the short term,” wrote Kiplinger’s Richard Sammon. The headline for The Hill’s story was “Democratic strategists divided on impact of immigration suit.”
Such stories represent what’s wrong with traditional political writing. They avoid dealing with substance. Instead, there are “he said, she said” stories, quoting observers, political hacks and academics, named and unnamed, on the electoral implications of an issue. These stories are easy to do—quick and superficial, qualities highly esteemed in the new journalism.
To understand the constitutional questions raised by the Arizona law and why the federal government went to court to stop it, take a look at the brief supporting the Justice Department lawsuit, which seeks a temporary injunction against the Arizona law. In clear language, it explains the reason for the suit:
“In our constitutional system, the power to regulate immigration is exclusively vested in the federal government. The immigration framework set forth by Congress and administered by federal agencies reflects a careful and considered balance of national law enforcement, foreign relations, and humanitarian concerns—concerns that belong to the nation as a whole, not a single state. The Constitution and federal law do not permit the development of a patchwork of state and local immigration policies throughout the country.
“Although a state may adopt regulations that have an indirect or incidental effect on aliens, a state may not establish its own immigration policy or enforce state laws in a manner that interferes with federal immigration law.
“The State of Arizona has crossed this constitutional line.”
The Justice Department brief also detailed the impact the law would have on people suspected of being in this country illegally.
The Arizona statute law says a law enforcement officer must demand proof of legal residency from anyone he or she stops if the officer suspects the person is an unlawful alien. Although most of those asked for their papers would probably be Latinos, among other potential targets would be a software entrepreneur of Indian descent, an African-American businessman or some white guy who displayed what a cop considered a bad attitude. If a person can’t provide proof of citizenship, the police can jail him or her pending a check of status with the federal government—a process that could take days, weeks or, given bureaucratic red tape, even months.
“The breadth of Arizona’s mandatory immigration verification scheme is unparalleled and serves to exacerbate the conflict with federal law,” the brief said. “The constant threat of police inquisition is not limited to persons who are suspected of serious criminal offenses because [the law] … mandates immigration status inquiries, when practicable, for every lawful stop where there is ‘reasonable suspicion’ of unlawful presence. … Immigration status verifications accordingly are mandated even for suspected minor, non-criminal infractions of state or local law—such as a minor traffic offense, jaywalking, ... failing to have a dog on a leash, ... or riding a bicycle on a sidewalk. …”
The Arizona law, the brief said, “will result in the harassment and incarceration of foreign nationals and lawful residents—and even U.S. citizens who will not have readily available documentation to demonstrate their citizenship.”
The Arizona law is much tougher than United States immigration statutes. Federal law is a complex amalgam of harshness and occasional compassion, such as offering the chance of sanctuary from political oppression and domestic violence. It also allows 90-day stays for tourists and business people.
The Arizona law has just one purpose: to drive from the state those who can’t produce documents showing they are here legally. As the law puts it, “The legislature declares that the intent of this act is to make attrition through enforcement the public policy. …”
In other words, Arizona rejects national immigration law and substitutes its own.
Thomas Saenz, general counsel and president of the Mexican American Legal Defense Fund, which is opposing the Arizona law, said the law is an example of nullification, which holds that a state has the power to prevent the enforcement of federal laws.
The Southern states invoked nullification in the first half of the 19th century in their efforts to preserve slavery. The Civil War ended that effort, and the postwar 14th Amendment required states to provide equal protection of the law to anyone within their borders. But in the mid-20th century Southern governors trying to stop enforcement of Brown v. Board of Education, banning school segregation, revived the nullification doctrine.
Saenz, in a Fourth of July speech at All Saints Episcopal Church in Pasadena, Calif., called the Arizona law and copycat versions proposed for other states “a new nullification.”
“These new nullifiers are trying to push our nation backwards,” he said.
He also said, “If we allowed Arizona to have its own immigration regulations and California to have its own that deviated from Arizona’s and New Mexico to have its own unique set of immigration regulations and New York and every other state, we would cease to be a single nation.”
Federal law recognizes that we are a nation of immigrants and immigration is part of our history and future. Arizona and potential copycat states do not want to recognize this law. That’s the issue in the current immigration fight, and it is more important—and interesting—than speculation over whether it will help or hurt the Democrats or the Republicans.
AP / Michael Dwyer
Arizona Gov. Jan Brewer speaks to reporters at the annual meeting of the National Governors Association on July 9 in Boston.