Borderline Ruling

The Supreme Court decision early today on the Arizona illegal immigration law is just out, so what I’m doing here today is giving my first impression. It’s possible I will understand it differently in time. But here is the summary.

There were four provisions of the law under question:

1. Section 2(B): When Arizona law enforcement reasonably suspect that somebody they have lawfully detained is in the country illegally, they must check immigration status.
2. Section 6: Arizona law enforcement can make warrantless arrests if they have probable cause to believe that the suspect is in the country illegally. The person is then turned over to federal immigration authorities to deal with.
3. Section 3: It’s a crime under Arizona law for illegal immigrants to fail to carry alien registration documentation.
4. Section 5(C): Unlawfully present aliens can’t knowingly apply for, solicit, or do work in Arizona.

The first was upheld unanimously. The other three were struck down in a split decision (5 to 3, with Kagan recused).

So there’s good news and bad news here. The good news is that the essential question was upheld. Arizona is not racially profiling or otherwise infringing on rights when they have detained someone lawfully and then additionally check on their legal status. To most observers, that was pretty much the total question.

However, the other sections are troublesome. The second part (section 6) says Arizona can find out a person is not legal and can then arrest them on suspicion of being in the country illegally. Now they can’t arrest. I’m not sure that means they can’t detail—until the federal government responds to inquiry and then takes possession of the illegal detainees. They may still be able to detain and hold. But it sounds like the Obama administration is making it clear they’re not going to help, with information on legality of suspects, with taking custody of detainees, or with enforcing the law on illegal immigration.

The third provision (section 3) was struck down as unnecessary, because it is exactly a repetition of current federal law. So it’s not struck down as wrong, but as unnecessary for a state to put into law when federal law already makes the requirement.

The fourth one (Section 5(C)) was struck down, but it is still unlawful for illegals to work; it just places the burden of weeding out illegals on the hirer, where it has been, rather than also on the hired.

The first one, that was upheld, was in part because claiming a class of people have been harmed by a law that has not yet been implemented is problematic. Once the practice is allowed, there is the possibility that someone could then claim to be the subject of racial profiling, and could then start a new lawsuit related to this provision. The good thing is that the ruling says the law in itself does not discriminate, and if there is no illegal practice in implementation, it will be legal. But they say that remains to be seen.

I’m troubled by the separation of federal and state law. You don’t want state laws to preempt federal law on those things that are properly in the federal purview. You wouldn’t, for example, want a state to make trade arrangements with a foreign nation at odds with federal policy. For example, if Florida decided it would start importing cigars from Cuba while that is against federal law, you’d have a problem. It’s appropriate for federal law to cover border integrity. But what you’d expect to be a problem would be a state refusing to enforce federal law; you don’t expect there to be a problem with a state using its resources to comply with federal laws already on the books. That’s not a conflict; that’s a synergistic success.

Unless you have a federal government whose policy is at odds with federal law. Then you have a state complying with federal law that the federal government is refusing to enforce—and they sue the state not for interfering with the actual law, but interfering with policy at odds with the law.

In my opinion (and I think this matches Scalia’s dissent), the state should not be prevented from having or enforcing laws in complete compliance with federal law.

The tenth amendment points out that, while enumerated powers are delegated to the federal government, all others are reserved to the states and the people. In other words, the people and the states have delegated some specific duties to the federal government (and no more than what is spelled out). And the people and states could only delegate those powers if they had those powers in the first place. The state and individual do not cease to be able to protect themselves when they have delegated the general protection to the federal government. If an individual is attacked in his home, he can call for help from local or state law enforcement, but he doesn’t need to cower with no power to protect himself; he can pull out a weapon and protect himself, even killing the attacker, any time the next higher up government protection isn’t successfully protecting him.

The same must be true for a state. If a border is not being kept safe by the federal government to whom that duty was delegated, then the state has every right to continue to protect itself; that right was never absent.

I think the border states should not only go ahead and protect themselves, they should charge the federal government for any costs incurred. There should be a way to intercept money headed to the federal government from the state, and those costs deducted first (I don’t trust the federal government to reimburse—just saying). Because it simply adds insult to injury for the federal government to fail in their duty and charge the victim for the costs of protection they failed to provide.

So the troubling thing about the ruling is a basic misunderstanding about the relationship between state and federal law. I wish we could better trust the court—especially this week, when the nationalized health care ruling is scheduled to come down on Thursday.