President Barack Obama’s administration and a host of other critics have lambasted Arizona’s new law allowing police to question individuals they suspect of being in the country illegally. The president says the new policy endangers “basic notions of fairness.” That’s a sound criticism of a misguided law.
What is not so sound is the notion of challenging the measure as unconstitutional, something being entertained by the U.S. Justice Department. At this point, at least, it’s too early to conclude that the state is overstepping its legitimate powers or violating anyone’s rights.
There are two central grounds for a lawsuit. The first is that by allowing cops to demand proof of legal residence from anyone they reasonably suspect of being here illegally, the law ordains racial profiling, which is illegal.
But that argument doesn’t look promising. In its original form, the law said police could not use race as the sole reason for suspecting someone was an illegal immigrant, which left open using it as one reason. Later, though, the Arizona legislature barred any consideration of race by police.
It’s possible that cops will target Latinos anyway. But the courts are not likely to block implementation of the law on the theory that it’s impossible to enforce without racial profiling. They would need evidence compiled after the law has gone into effect.
The second basis for a lawsuit is the claim that by legislating on immigration, a federal responsibility, the state is meddling in areas where it must yield to a higher authority. In this view, federal legislation pre-empts the states from adopting their own measures.
But just because the statute affects illegal immigrants doesn’t mean Arizona is out of line. In 1976, the U.S. Supreme Court upheld a California ban on the employment of illegal immigrants. Congress could explicitly bar states from legislating on such matters, but it hasn’t.
The Justice Department could argue that by obliging cops to detain illegal immigrants and turn them over to federal authorities, Arizona will impose an expensive burden on Immigrations and Customs Enforcement (ICE). It could also claim that by antagonizing Mexico, whose president has denounced the law, the state has undermined U.S. foreign policy.
But those arguments are shaky on both legal and political grounds. All Arizona is doing, after all, is shoring up enforcement of laws enacted by the federal government.
“It may seem a bit curious to argue that a state is interfering with federal policy by rounding up too many violators, unless the policy is non-enforcement,” says George Washington University law professor Jonathan Turley. It would also be problematic to say we can’t offend our neighbor to the south by enforcing our own immigration laws.
While Arizona’s purported remedy for its illegal immigration dilemma is clumsy and dangerous, it’s not beyond the reasonable scope of state authority.
Arizona ought to have considerable freedom to address the problem as it sees fit. And the other 49 states should be free to spurn its solution.
