Why feds are suing Arizona 

The real motivation for the Justice Department’s lawsuit against Arizona’s new immigration law was the only one not mentioned in the department’s brief: The Obama administration has no intention of enforcing immigration laws against the majority of illegal immigrants already in the country.

It’s that policy alone that conflicts with SB 1070. Arizona wants to enforce the law, but the Obama administration does not. Reasonable minds can differ on whether that conflict puts Arizona in violation of the Constitution’s Supremacy Clause.

What’s indisputable is that the failure of the federal government to openly acknowledge the real ground for its opposition to SB 1070 has rendered incoherent not just its own public arguments against the law, but the judicial ruling that largely rubber stamps those arguments.

The Arizona law affirms the power of a local police officer or sheriff’s deputy to inquire into someone’s immigration status, if the officer has reasonable suspicion that the person is in the country illegally and if doing so is practicable. Under SB 1070, such an inquiry may occur only during a lawful stop to investigate a nonimmigration offense.

Both the Justice Department and U.S. District Judge Susan Bolton, in striking down most of SB 1070, couched their opposition to the law exclusively in terms of its effect on legal, as opposed to illegal, immigrants. SB 1070, Bolton wrote, would impermissibly burden legal immigrants already in the country by subjecting them to unwarranted immigration checks.

There are two problems with this line of argument.

First, it ignores the fact that Congress has already anticipated and approved precisely the sort of local immigration inquiries that Bolton now finds unconstitutional. Second, the argument would make all immigration enforcement impossible.

In 1996, Congress banned so-called sanctuary policies, by which cities and states prohibit their employees from working with federal immigration authorities regarding illegal immigrants. It was in the federal interest, Congress said, that local and federal authorities cooperate in the apprehension, detention or removal of illegal immigrants.

In pursuance of that mandate, the federal government operates an immigration clearinghouse, the Law Enforcement Support Center, to provide just the sort of immigration-status information to local and state law enforcement officials that SB 1070 seeks.

It’s therefore absurd to now claim, as Bolton and the Obama administration do, that such local inquiries conflict with the federal immigration scheme. It’s even more absurd to argue that the risk that a legal immigrant will be questioned about their immigration status makes the alleged conflict unconstitutional.

Any immigration enforcement carries the possibility that a legal immigrant or U.S. citizen will be stopped and questioned. The only way to guarantee that legal immigrants are never asked to present their papers is to suspend immigration enforcement entirely.

If Congress intended to create such a blanket ban on asking legal immigrants for proof of residency, it could have revoked the 1952 law requiring immigrants to carry their certificate of registration. Such a requirement makes sense only on the assumption that legal immigrants will upon occasion be asked to prove their legal status. And it strongly suggests that something else is going on.

That something is the fact that SB 1070 would have put the Obama administration in the uncomfortable position of repeatedly telling Arizona’s law enforcement officers that it’s not interested in detaining or deporting the illegal immigrants that they have encountered in the course of their duties. The law, in other words, would have exposed the administration’s de facto amnesty policy.

Heather MacDonald is a contributing editor to City Journal and co-author of “The Immigration Solution.”

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A daily newspaper covering San Francisco, San Mateo County and serving Alameda, Marin and Santa Clara counties.
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