Desert Discomfort

I have been a bit quiet on the Arizona law regarding illegal aliens (SB1070) for a number of reasons. First, I am sympathetic to a state that has been over run by crime exported from Mexico across a border that the federal government of both administrations has refused to patrol. The legal definition of national sovereignty is:

The supreme, absolute, and uncontrollable power by which an independent state is governed and from which all specific political powers are derived; the intentional independence of a state, combined with the right and power of regulating its internal affairs without foreign interference.

Note the last line, regulating its internal affairs without foreign interference. This implies a control of its own borders, because if its borders are not under control, then logically, the state (in this case the United States) have left them open to foreign interference.

Next, the wikipedia definition of a failed state includes this bullet:

• Loss of physical control of its territory, or of the monopoly on the legitimate use of physical force therein,

Note the emphasis of physical control of its own territory. This isn't some right wing definition either, it was proposed by noted lefty Noam Chomsky. Both the U.S. Constitution and customary law puts the onus for enforcement of the border on the federal government. Further, its failure to enforce its borders calls into question the sovereignty of the of the federal government.

However, this is part of my trouble with the law. It is manifestly not the proper province of local government to enforce the border. Now technically, AZ is not really performing border enforcement, merely requiring that police check the legal residency status of persons stopped for other reasons by law enforcement. However, the federal law governing illegal aliens do not make it a criminal offense, only a civil issue, which penalty is deportation. The Arizona law:

Requires a reasonable attempt to be made to determine the immigration status of a person during any legitimate contact made by an official or agency of the state or a county, city, town or political subdivision (political subdivision) if reasonable suspicion exists that the person is an alien who is unlawfully present in the U.S.

I think this goes slightly too far, I would prefer that the immigration status only be checked if the suspected illegal is in a custodial situation. Checking on background for all contact seems onerous and interfering with officer's daily routines and opens the potential for abuse. In general, I am not in favor of increased police powers, I believe they have enough at their disposal.

But is this the greatest injustice in the land? No. Does it send a message that the federal government is failing in its responsibilities? You betcha. I just think that the law could have been trimmed a little to achieve those ends. Further, if it was written as I proposed, I guarantee it would survive every court challenge and that the federal government would lose in court if they failed to receive illegals brought to them by the state. So I don't support the Arizona law wholeheartedly, but also I oppose the opposition to the law, because it is being opposed for the wrong reasons, namely as a wedge issue to introduce open borders. I favor vastly increased legal immigration, but not open borders, for reasons previously cited.

A second and less commented upon part of the law requires:

...E-Verify, which allows employers to electronically confirm the employment eligibility of all newly hired employees. LAWA requires all Arizona employers to use E-Verify to verify the employment eligibility of new hires. Proof of verifying the employment authorization of an employee through E-Verify creates a rebuttable presumption that an employer did not intentionally or knowingly employ an unauthorized alien.

[LAWA is the Legal Arizona Workers Act, a 2007 law.] The Obama administration is attempting to block this provision in court. This puts them in the interesting position of arguing that e-verify is essentially voluntary, and therefore worthless as an enforcement tool, despite previous Congressional efforts to make it mandatory. Interestingly, this law has survived every constitutional challenge. [See Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d856 (9th Cir. 2009), petition for cert. filed, 78 U.S.L.W. 3065 (U.S. July 24, 2009) (No. 09-115).] That reference offered without editorial comment. Key issue in the administration's legal challenge, Congress re-authorized the bill in 2009 after Arizona passed its own law. We can assume that the Congress was aware of the AZ law, but re-authorized e-verify anyway, meaning that the Congress intended to allow states to make it mandatory. Lengthy analysis at The Volokh Conspiracy.

I look forward to seeing the administration smacked down by the Courts.