Arizona, Preemption, and Immigration

Earlier this year, the state legislature in Arizona passed one of the strictest immigration laws in the United States. Faced with the massive monetary and social consequences of illegal immigration, you can’t blame Arizona for taking drastic action. Many states—and even individual localities like Prince William County, VA—have been forced to tighten local enforcement of the previously largely-unenforced federal immigration laws in order to maintain their own financial solvency.

Unsurprisingly, immigrants who choose to flaunt our laws to get into this country too-often continue to flaunt our laws once they’re here. Localities with large illegal immigrant populations invariably have skyrocketing rates of both property and violent crime—and increases in the associated costs of police enforcement, jails and prisons, public defenders, prosecutors, judges, etc. This alone would have been sufficient reason to crack down, but then you add to that the costs associated with educating the children of illegal immigrants, providing public medical care for illegal immigrants, and so on—when illegal immigrants generally aren’t paying taxes on their ‘under the table’ incomes—the argument in favor of Arizona-style laws gets even more clear.

Immigration policy, generally speaking, should really be a federal issue . . . unlike, say, health care, education, medical research, auto manufacturing, banking, or most of the ten-billion others things our government does without any Constitutional authority. Curiously, while our government has no apparent problem dabbling in all these places they have no right to dabble, it has essentially abdicated its role in immigration enforcement. Illegal immigrants go about their activities without consequence; businesses hire illegal immigrants with impunity and without any serious fear of prosecution. The federal government just looks the other way and, meanwhile, the states and the people are forced to absorb the real costs of the invasion.

President Barack Obama’s (D) administration has now brought suit against Arizona over its immigration law, claiming that, by enacting its own immigration policy, the state has stepped into a place that only the federal government may step. This seems to be a plausible legal argument; federal law is the law of the land and in many cases federal law ‘preempts’ state law. The problem is that the legal doctrine of preemption only applies when a federal and state law are in conflict or when federal law explicitly prohibits a state from doing something. Because Arizona’s law almost perfectly mirrors the federal laws already on the books and merely gives state officials authority to enforce existing federal laws that the feds have failed to enforce, and because there is no federal law prohibiting them from doing so, the doctrine of preemption simply doesn’t apply.

If Arizona’s law had been in direct conflict with the federal laws, then preemption would apply. If Arizona’s law went further than federal immigration laws, then perhaps preemption would apply depending on the specifics of the case. Since Arizona’s law simply duplicates federal law at the state level, preemption doesn’t make any sense at all . . . federal preemption would simply replace the oh-so-terrible Arizona state law with a federal law that does the same exact thing. Our Congress could pass a federal law explicitly prohibiting the states from doing this, but they have chosen not to do so. If Obama really doesn’t want Arizona’s law to stand, then passing such a preemption law would be the proper way to eliminate it. An ill-advised lawsuit with little or no legal validity, however, is just a giant waste of taxpayer dollars.

The best solution would be for our federal government to stop goofing around and actually pass comprehensive immigration reform. We need a mechanism for migrant workers to come into the United States legally. We need to make it possible for immigrants who simply want a better life for themselves and their families to come in, work, pay taxes, and become a contributing member of our society. However, it is equally important that we enforce our own immigration laws, deport people who enter illegally or who commit crimes after coming, and secure our borders lest they remain a conduit for drugs and crime or, worse, become a conduit for terrorism.

The energies being spent by the Obama administration on harassing Arizona for making a justified attempt to defend itself against an onslaught of illegal immigration would be better spent on crafting the immigration reform plan that our presidents (Republican and Democrat alike) have been promising for decades. Attempting to overrule Arizona’s popular law through the courts is the wrong approach (legally speaking) and potentially suicidal (politically speaking).

Scott Bradford is a writer and technologist who has been putting his opinions online since 1995. He believes in three inviolable human rights: life, liberty, and property. He is a Catholic Christian who worships the trinitarian God described in the Nicene Creed. Scott is a husband, nerd, pet lover, and AMC/Jeep enthusiast with a B.S. degree in public administration from George Mason University.