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Arizona & A broken immigration policy                                                                                    

Posted at: Jul/13/2010 : Posted by: mel

Related Category: The Law,

Let me paint the canvas for you. In April of 2010 the state of Arizona passed a controversial law dealing with immigration issues and the border it shares with Mexico. The law is mandated to take effect no later than August 1st of this same year. In early July the Justice Department of our federal government claiming “preeminent authority” filed a lawsuit in U.S. District Court to block implementation of the new Arizona law.

I can’t personally recall any situation in my lifetime of similar scope for challenging legal authority and the ability to act.

As always, a few facts make for a good place to begin. First of all I want to be very clear that while I am not a Constitutional scholar; the U.S. Constitution makes it pretty clear that the security of our national borders, the setting of immigration policy, and the duties of dealing with foreign nationals falls exclusively with the Federal Government. Unfortunately, Arizona, like so many other border states is at the front line of a violent crisis. There is a tremendous amount of violence associated with the Mexican drug and immigrant smuggling cartels. The violence reached the tipping point with the death of an Arizona rancher earlier this year at the hands of this activity as it spilled over the border.

While Arizona is the first, it will most likely not be the last to pass a law associated with immigration policy. I know, I just said that immigration policy and border security are exclusively the province of the Federal Government. Despite this, each state has a responsibility to protect and provide security to its citizens. The general feeling in most border states is that the Federal Government has failed at this particular task.

There has been a lot of talk that the new Arizona law encourages “racial profiling”. Let’s first look at this point. The Arizona law makes it a crime to be an illegal immigrant there. This is actually nothing new, the term “illegal immigrant” pretty clearly implies being outside the law. Actually, it has always been a crime to be in the country illegally. The new law requires police officers to determine the immigration status of people they stop for other offenses if there is a “reasonable suspicion” that they might be illegal immigrants. Like any law, once provided to the police there is some opportunity for abuse, but this is about being stopped for another crime first. If you look Hispanic that is not enough grounds to be stopped and asked for ID. If you just ran a red light, when the officer stops you, they may choose to ask for proof of immigration status. There is no doubt that someone with Anglo features is less likely to be asked for immigration papers than someone with Hispanic features. But if there is no suspicion of a crime, there is not going to be a stopping and asking scenario. The law then states that officers can arrest anyone found to not be a legal immigrant. Yep, this kind of a law puts Arizona law enforcement in the immigration business, but it is also just as clear that the Federal authorities tasked with the same job have failed miserably.

So the Justice Department is suing the state of Arizona. The suit names the state of Arizona as well as Gov. Jan Brewer as defendants. In it, the Justice Department claims the federal government has "preeminent authority" on immigration enforcement and that the Arizona law "disrupts" that balance. It urges the U.S. District Court in Arizona to "preliminarily and permanently" prohibit the state from enforcing the law, which is scheduled to go into effect at the end of the month (July 2010).

"Arizonans are understandably frustrated with illegal immigration, and the federal government has a responsibility to comprehensively address those concerns," Attorney General Eric Holder said in a written statement. "But diverting federal resources away from dangerous aliens such as terrorism suspects and aliens with criminal records will impact the entire country's safety."

Holder also warned of "a patchwork of state laws" that "will only create more problems than it solves."

Brewer responded by accusing the Obama administration of a "massive waste of taxpayer funds."

"It is wrong that our own federal government is suing the people of Arizona for helping to enforce federal immigration law. As a direct result of failed and inconsistent federal enforcement, Arizona is under attack from violent Mexican drug and immigrant smuggling cartels," she said in a written statement. "Now, Arizona is under attack in federal court from President Obama and his Department of Justice."

She went on to point out "the irony" of suing Arizona for its immigration enforcement law but ignoring cities and other local governments whose "patchwork local ‘sanctuary’ policies instruct the police not to cooperate with federal immigration officials."

The Justice Department's lawsuit argues the state law focuses only on getting rid of illegal immigrants and "ignores" other immigration objectives. "The United States Constitution forbids Arizona from supplanting the federal government's immigration regime with its own state-specific immigration policy," the suit says. "A policy that, in purpose and effect, interferes with the numerous interests the federal government must balance."

Lucas Guttentag, director of the American Civil Liberties Union Immigrants' Rights Project, called it a "critical step" to undo Arizona's "unconstitutional usurpation of federal authority and its invitation to racial profiling." The Mexican government has also come out expressing concern for the new law and its potential impact on its citizens, despite the fact that they are illegally in another country.

The Arizona law has obviously touched off an intense national debate over immigration. The results of any court challenge will have wide-ranging implications, as a number of other states and jurisdictions have taken up tough immigration policies similar to Arizona's in light of the current failures by the Federal Government.

So that is a lot of arguments on both sides. Unfortunately no one is right, but there is plenty of wrong to go around. Securing America’s borders is clearly the responsibility of the federal government. State and local police are tasked with providing for and ensuring public safety. In application, I actually see nothing wrong with what Arizona has done. If the federal authorities are going to fail at their responsibilities for security against “illegal immigrants”, they should be grateful that the State of Arizona has stepped up to the task. Remember, this law is about “Reasonable Suspicion”, and only in the case of people who have already broken the law. In review, is there really and difference with this law and police asking a young person for ID when they suspect that the person might not be of legal drinking age. As for Mexican concerns, the International Red Cross has campaigned for years about Mexican abuse of foreigners. While that is not excuse, the Mexican government is clearly biased to a “do as I say, not as I do” approach.

Ultimately as a citizen, I look to my governmental institutions to first and foremost provide me with safety and security. If Washington has failed at this task, I offer my respect to Arizona and it leadership for taking up this issue even when it is technically not theirs to take. Attacking a problem is much more important than debating whose plate it belongs on.

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