The Import of United States v. Arizona (the Show Me Your Papers Suit)

By Michael Bryan

Apparently unlike many of the folks in the media who now are opining about the Fed's suit enjoining enforcement of SB1070 (judging solely from the lack any apparent factual basis for many of the opinions on display), I have actually read the complaint and the brief. I am now working my way through the attachments, including multiple declarative statements by top federal officials and some here in Arizona. When Arizona answers, I will read that, too. 

What the Fed's concern boils down to is that Arizona has created its own system of immigration focusing on "attrition through enforcement" that conflicts with, and negatively impacts, federal immigration policy as carefully crafted by Congress and the Executive to meet various, and often conflicting, national goals. Arizona's rash legislation also invites emulation by other states eager to impress their own priorities on immigration policy in their own jurisdictions. 

In follow-on posts I will discuss the many federal pre-emption doctrine, Negative Commerce Clause, and foreign policy supremacy issues the Fed's brief raises. Suffice it to say, I will be absolutely scandalized and floored if the 9th Circuit court does not act quickly to maintain the constitutional order and suppress Arizona's over-reaching. SB1070 is not just rallying Arizona's law enforcement agencies to the task of assisting with immigration enforcement; it's a Constitutional challenge of federal authority as systemic as that advocated by the most rabid state nullificationist.

The race-baiting, unreasoning intolerance, xenophobia, and fear-mongering by proponents of SB1070 is, of course, sickening. But what I am finding most annoying are those Democrats and Republicans who do not support SB1070, and should be working to stop it, who are saying that this suit is "premature" (like, ironically and irresponsibly, both Arizona's Senators), or is a "distraction" (a sentiment voiced by Representatives Giffords and Kirkpatrick, so far). They are all dead wrong and covering their political asses. 

It's sad, and frightening, that some of our federal officials won't stand up for their own Constitutional authority and primacy of the very government of which they are a part. God forbid there should be a politically "popular" attack on a more structurally vital part of the federal government's authority: don't look to this bunch of spineless finger-wagglers to stand up for the rule of law, or even the prerogatives and legitimacy of their own offices.

This suit implicates the heart of our constitutional order: Federalism and Federal supremacy. At stake is who will politically control American immigration policy and the conduct of bilateral international relations – the federal government, or some yahoo, incompetent, Know-Nothing, faux-populist state legislators elected in party primaries by a few thousand panicky, racist, party hacktivists in non-competitive districts, like Russell Pierce or Kirk Adams. You might intuit my preference…

Arizona's politicians are scared shitless of immigration issues this year, as they have been in election years for many years now. What scares them even worse this year, and has Democrats like Gabby and Kirkpatrick paying lip service to the worst fear-mongering framing of the immigration issue, is that polls indicate broad support for SB1070. But what do those polls really indicate? What are people actually expressing support for? Are the details and implications and side-effects of SB1070 actually explained to those surveyed? Of course not. 

Voters are surveyed on either the extremely limited, biased, or flat-out wrong depictions of the bill in the media, or asked if they support the most prominently discussed aspect of the bill – officers inquiring into suspects' immigration status if they are suspicious. Everyone supports that. Officers already have that ability, as well as systems in place to report possible immigration violations to Federal authorities. No surprise then that support for this common-sense law-enforcement tool is deep and bi-partisan. 

What is not asked is if people support criminalizing the mere presence of undocumented immigrants in the state, or creating new crimes for use of any public transport or seeking work by undocumented immigrants (including criminalizing providing any transportation service or work, which is far more than merely mirroring federal law), or making verification of the immigration status of every person arrested in the state, including Americans, mandatory before release. Or ask them if they think that the Arizona state legislature should be dictating America's immigration policy. Or if it would be OK if every single state had its own immigration policy. Ask those questions and you are likely to get a much different response from voters. 

Unfortunately, too many of our politicians are refusing to be advocates of good policy choices, or educators of the public they serve, but are merely panderers seeking nothing greater than preserving their jobs and avoiding any controversy.

It's a laborious task for a writer, and frequently for the reader, to expound upon constitutional issues for a lay audience. I'll give it shot and work through the issues presented by the Fed's brief over the coming days. I urge you to download and read at least the complaint yourself. The complaint frames the government's argument, but doesn't go into great detail or cite to legal authority.

For now, I will just express my concise opinion of the issues presented by the suit: this is not even a close issue. SB1070 clearly encroaches upon federal authority over immigration and the conduct of foreign policy, both in general, and in several particulars. The enforcement of SB1070 will irreparably harm American foreign policy and administration of the immigration laws and will be enjoined by the court before it comes into effect on July 29th. There isn't a doubt in my mind. Which generally means I'm wrong. But there is always a first time…

Update 7/8/10: How Does SB1070 Interfere with Federal Immigration Law Enforcement?