The framers of the US Constitution wanted to establish a number of levels (the document assumes local governments and outlines the national government’s inability to interfere in the jurisdictional prerogatives of the states) and branches of government (Executive, Legislative, and Judicial). One of their ideals was to avoid the sort of monarchic or aristocratic amalgamations of legislator/judge that ruled in early modern England. The design was also meant to try to ensure that no individual institution within the government could unilaterally act. Such a system has launched a good number of debates and conflicts (oh, and a Civil War). And we are about to have another one that will have a significant influence on the specific issue of (illegal) immigration and on the general issue of which level of government is responsible for which kinds of policies. The US Justice Department is suing the State of Arizona over its recent law requiring the enforcement of federal immigration laws and the expedited deportation of any suspected illegals (SB 1070). The argument is that immigration is the purview of the national government. What is the background to this dispute and who will win?
Most Americans support the effort by the Governor Janice Brewer (R) and the Arizona State Legislature to stem illegal immigration. Indeed, according to a CBS.com poll, some 17% of Americans questioned believe that the law does not go far enough in seeking out and dealing with illegal immigrants. The most often cited argument is that the Federal government has failed to deal with the problems caused by illegal immigration (and Arizona is the gateway for more illegal entries from Mexico and central America than any other state), and our federal Constitution allows states to establish laws for their best protection and prosperity. Even those on the political left struggle to defend illegal immigration per se. They mostly counter that the way Arizona has decided to tackle the issue will, as Attorney General Eric Holder puts it, “create a patchwork of state laws that will only create more problems than it solves.”
In terms of the history of state enactment of immigration law, Arizona is following a trend established in the mid-nineteenth century when western states felt the need to limit Asian immigration. California passed the first such law, the “Anti-Coolie Act” of 1862 (ah, the good old days) to protect ‘white free labor’ from Asian immigrants. But the process really got going in the 1880s during – surprise – the economic downturn that preceded the ‘Gilded Age’ of turn-of-the-century America. Asians and Italians were the ones especially called out by states along the two coasts looking to keep the decreasing number of jobs among the whites.
And yet, that same history shows how the federal government has constantly and consistently challenged such state laws as overstepping the jurisdiction of the federal government. And the federal government has never lost the general argument that immigration is a national concern/policy and one that involves foreign policy – a subject that the Constitution expressly gives only to the federal government.
Then why is Arizona positing this law, and why is Governor Brewer confident of victory?
(From foxnews.com)
“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.”
Most pundits agree that the effort is largely political and symbolic. Only the far left (a minority in numbers and in voice) try to argue that illegal immigration is not a concern. The real issue at the moment, though, seems to be how to move one’s political opponents into a position of check mate leading up to the midterm elections this November. Many Republicans championed immigration reform in the middle of GW Bush Jr.’s administration, but most are unwilling to work with the Obama Administration on the same (perhaps ‘worse’) problem. Candidate Obama had promised to put immigration reform high on his list of priorities, but 18-odd months into his administration has not seen any action on the issue, which frustrates the center/center-left. The prospect of fighting over this issue on the grounds of the Arizona law might give both sides opportunity to air their cases without much political risk: Republicans can point out the great support for dealing with illegal immigration during – surprise – this economic downturn without actually having to deal with it. Democrats can paint the governor and people of Arizona as cantankerous and ill-directed distractions to the problem, again: without actually having to deal with it.
Illegal immigration is, well, ‘illegal.’ But it was immigration (largely, but not always, legal by the statutes and limitations of the day) that have consistently allowed the US to reinvent its economy, its politics, and its culture. And frankly, we could use a bit of that reinvention at the moment. Perhaps a recent immigrant could rise to a position of leadership to deal with the issue? Many groups and political parties, even sectors of the federal system of governments have tried to limit opportunities for minority groups to have influence. Time and again they have failed to hold those limits (admittedly, some of those limits take generations to overcome). Time and again the US has emerged more diverse, more dynamic, and stronger. The question before us is not whether the Arizona law is struck down. The question is how we will work with the issue once the law is struck down.
