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More Sins of Omission in U.S. v. Arizona

By Heather Mac Donald - August 2, 2010 1:51 PM

The Justice Department and Judge Susan Bolton both couched their U.S. v. Arizona analysis almost exclusively in terms of how Arizona's immigration law would have affected legal, as opposed to illegal, immigrants, as I mention here. That strategy makes political sense, no doubt, since legal aliens may be a more sympathetic victim of allegedly overreaching government.

But the choice is unfortunate, since it is the law's as-yet-unknown operation on illegal aliens that poses its one potential constitutional infirmity, in my opinion. Section 3 of S.B. 1070 makes it a state, as well as federal, crime, to violate the federal government's longstanding requirement that a legal alien always carry his registration certificate (such as a green card). The state penalty for failing to carry such proof of legal presence is initially more modest than the federal penalty, but after the first offense mirrors the federal maximum fine of $100 and maximum prison time of 30 days.

Consistent with the rest of her opinion, Judge Bolton finds section 3 facially unconstitutional, irrespective of its actual operation. She claims, without further explanation, that the section "stands as an obstacle to the uniform, federal registration scheme and is therefore an impermissible attempt by Arizona to regulate alien registration."

Of course, section 3 does nothing of the kind. It does not change the federal registration scheme one iota, unlike a Pennsylvania alien registration statute which the Supreme Court invalidated in 1941, a ruling which Judge Bolton cites as controlling authority. The Pennsylvania statute struck down by the court imposed additional registration requirements and annual fees beyond the federal requirements. S.B. 1070's section 3, by contrast, adds nothing to the federal scheme for legal immigrants.

But let's say a sheriff's deputy in Tucson has pulled over someone for weaving between lanes, and discovers that the guy has no driver's license or other form of government identification. The driver says he was born in El Salvador but has no immigration papers on him. The sheriff's deputy calls up ICE's Law Enforcement Support Center to determine if the man is in the country legally. He learns that there is no record of legal entry for the driver nor has he been naturalized as a U.S. citizen; in fact, the Border Patrol has picked him up crossing the border before. But ICE tells the sheriff's deputy to let him go for his suspected crime of illegal entry; ICE is not interested in him. What does the sheriff's deputy do now? Does he let him go, pursuant to federal priorities of ignoring all but the most heinous alien criminals? Or does he write him up for a violation of section 3, and possibly even throw him in the local jail? The latter scenario is presumably the point of having section 3 in the first place. But if Arizona does penalize an illegal alien whom the federal government would rather ignore, then the state arguably is putting itself at odds with the federal government's immigration priorities and creating its own immigration policy. Such a situation arguably does raise serious supremacy clause issues.

Unfortunately, S.B. 1070 gives no guidance as to how local officers should respond to federal directives regarding individual illegal aliens. We need to see how the law would have worked in practice to know how officers would have responded to any such federal directives, which is why Judge Bolton was wrong to grant DOJ's facial challenge. Perhaps such a scenario of potential conflict is precisely what underlay Judge Bolton's cursory preemption analysis of section 3. But it would have been nice to have had such thinking spelled out, if in fact it drove her to strike down the section.

However Arizona law enforcement officers might have responded to any ICE "catch-and-release" directives, the prospect of local officers repeatedly calling up ICE regarding an illegal alien and being told that the federal government had no interest in detaining or deporting him could have created a sizeable public relations problem for the Obama administration. The Arizona law could have made patently manifest what is already clear enough: The federal government has no intention of enforcing the law against the majority of illegal aliens already in the country. Such aliens currently enjoy a de facto amnesty while they wait for the de jure one. The federal government's policy of non-enforcement towards most illegal aliens was the only occasionally perceptible subtext of the Justice Department's brief in U.S. v. Arizona. By the time that the brief was converted into Judge Bolton's ruling, however, that subtext had been stripped out completely. The government's policy towards legal aliens was the only matter of judicial concern.

One is tempted to conclude that that final total suppression of how Arizona's intended policy of enforcement interacted with the federal government's policy of non-enforcement towards illegal aliens was deliberate. Beyond the confines of the courtroom, however, that question is all that the controversy over S.B. 1070 is about: Do we as a country want to enforce the immigration laws or not? It's time to answer that question.

This article first appeared on National Review Online.

Heather Mac Donald is a contributing editor to City Journal and a co-author of The Immigration Solution.


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