After my initial cursory glance at the legislation the other day, I've been talking and thinking about the development in Arizona at length with a variety of people in the pockets of free time that pop up occasionally between finals.
I have to say, the rabid outrage displayed by so many opponents of the law immediately after it was signed into law immediately set me on guard. The response seemed intemperate, reactionary, and not necessarily well-informed. That's why I sounded an observant, somewhat skeptical note in my post on Saturday - skeptical both of the scope of the law and its chances in court, on one hand, and the hyperbolic, unthinking reactions by its detractors on the other.
In my conversations online and in real life, I experienced yet another round of having to articulate a thoughtful, overarching conservative perspective on the bill (because, while they're certainly quite possible, I haven't heard or read many) so I could consider both sides.
In the end, I predict that the law (which is severable) will be struck down in whole or in part by the courts. And I support any limiting modifications that the courts impose.
I do so on very lukewarm, dispassionate - but foundational - grounds, however: immigration and border issues are more properly federal issues and responsibilities under the U.S. Constitution and our federalist form of government.
Getting to that final conclusion was quite an obstacle course in light of the principles and caveats involved, as I'll lay out below. But when it comes down to it, I'm a fan of liberty. An ordered liberty, crucially, but liberty nonetheless.
Strangely, while I've approached him a bit warily all along, I think Florida Senate candidate Marco Rubio comes to about the right conclusion.
More of my thoughts below.
Why was it so difficult for me to arrive at the conclusion that Arizona immigration law should be trimmed? There are myriad reasons.
For one, while opponents of the legislation were quick to point out that immigration was a federal prerogative, they largely failed to note that because the law was a state law, its potential negative impact on liberties was limited as well. I'm much more concerned about a federal law overreaching than a state law. As Mike H notes in the preceding post, George Will makes a strong case for the fact that Arizona's move makes for a great experiment in federalism...the laboratory is doing exactly what it was intended to do, so to speak, and it might be of value to us a country. The bill also at least tried to cabin itself within existing federal law, explicitly stating that it had such an intent. Moreover, states have police powers - in both the general and, here, the specific sense. I think its safe to say that an argument can be made that this bill focuses on activity at the confluence of state police powers and the enumerated federal power over naturalization matters.
Second, at a point in American history when the federal government has usurped state power or answered open federalist questions in its favor to an alarming extent and at an alarming rate, even with an eye to the Supremacy Clause, it's difficult for me to want to crack down on a state even further. Especially when, by all accounts, the federal government has failed to address illegal immigration in Arizona. Which is one thing I believe wholeheartedly that the federal government actually should do vigorously. And in this Arizona flare up, its failure to perform its function has been shouted away to the back burner. So perhaps its time for a reminder: illegal immigration is wrong. When someone enters a country, he or she should do so in compliance with the laws of that nation. Yes our current state of affairs in the realm of immigration is deplorable, as I noted - it takes far too long to immigrate legally. But that's not an excuse for making the first step into a nation of laws a lawless one. That's why some of the provisions in the bill, such as a crime of trespassing on private property, which would otherwise greatly concern me, are not as disconcerting from a liberty perspective.
Third, opponents immediately tarred the measure, categorically, as motivated by racial animus (and used other gratuitously inflammatory historical allusions). I don't care if a bunch of Swedish illegal immigrants were the problem. It's still illegal immigration. Dismissing supporters of the bill as racists is unfair and weak. A reasonable person could support the bill because they might believe it will reduce crime. Or reduce state expenditures. Or simply secure the border. And while in Arizona, the impact of the law might clearly be most likely to fall on those from Mexico, Latin America, or those of general Latin heritage, I think it's disingenuous to automatically paint all opposition as stemming from racial animus. It is possible that supporters sought some of the goals I pointed out entirely divorced from racial considerations - that they would support the law just as well if they lived in North Dakota and had an influx of Canadian illegal aliens. While one could argue that the requirement to keep papers on oneself to avoid deportation does stem from a healthcare-mandate-esque affirmative requirement to act, I think it's not as oppressive as its made out to be in light of our existing documentation requirements for citizens - and references by detractors to Nazis, etc. with respect of the carrying of papers requirement was excessive.
Fourth, there's been an insufficient understanding, as George Will alluded to as well, of our system of law. Few have done an adequate job of placing the Arizona law within the broader legal context. Where is discussion of the potential ameliorating impact of the Vienna Convention, which I brought up in my initial post? "Reasonable suspicion," too, is a legal term of art that has meaning and will get reviewed by courts - it is not just whatever someone thinks, which seems to be what even Marco Rubio thinks. There is some guidance. And I do not believe that courts would back officers who simply used the fact that someone was latino as reasonable suspicion that the person was an undocumented alien. Officer would almost certainly use a matrix of factors to avoid further legal hassle (although statutory immunity might be a moral hazard there). Arrest, too, requires a higher burden - probable cause, which, again, is a term of art that is explicated broadly and deeply in case law.
Even with all of these caveats, qualifications, and considerations in mind as possible defenses of the law, I still think it behooves a court to trim the law as enacted and signed, largely because the issue is more properly within the federal bailiwick, but also, on the liberty front, because of this analogous thought from Chief Justice John Roberts in last week's United States v. Stevens case from the First Amendment arena (ht/Volokh):
Not to worry, the Government says: The Executive Branch construes §48 to reach only “extreme” cruelty, and it “neither has brought nor will bring a prosecution for anything less,” The Government hits this theme hard, invoking its prosecutorial discretion several times. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.