To hear liberal critics talk, it would be easy to think the state of Arizona unleashed anti-Latino posses to detain all brown-skinned people, demand their proof of citizenship and toss them in jail if the answers aren’t satisfactory. The real story is more sober.
The new Arizona immigration law does not institutionalize racial profiling or make being Hispanic a crime. It allows law enforcement officers to conduct citizenship checks of people already detained for unrelated offenses, and only if there is reason to believe someone is in the country illegally. If so, they are handed over to federal immigration officials, who should have apprehended them in the first place.
Illegal immigration is a growing problem. A CBS/New York Times poll in mid-April found that 83 percent of respondents thought it was either a very or somewhat serious issue. Americans are especially concerned because of double-digit unemployment and state budgets straining to provide services.
Washington has been either unable or unwilling to cope with the problem, and Arizona Gov. Jan Brewer said the law she signed last week was intended to fill the enforcement vacuum created by federal passivity. “We in Arizona have been more than patient waiting for Washington to act,” she said at the signing ceremony, “but decades of inaction and misguided policy have created a dangerous and unacceptable situation.” President Obama countered that it was the Arizona law that was “misguided” while also acknowledging that the immigration system was “broken,” which actually is Mrs. Brewer’s point.
The O Force claims Arizonans are illegally trespassing on federal legal domain. “The determination of who should or shouldn’t be in this country is not one for the states to make,” Mr. Obama said. “This is a federal prerogative. Even if the states think we aren’t doing our job, they have no right to step in.” Like much of what the president says, this is not true.
The Supreme Court has ruled that when state laws are harmonious with federal regulations, pre-emption is not a given. In this case, Arizona is not claiming the right to define who is an illegal alien but to help enforce existing federal law. The federal government would need a persuasive reason to argue that Arizona cannot lend a hand, and because the president admitted the system is broken, he seems to have conceded the point.
The Arizona law has a stronger constitutional basis than Mr. Obama either knows or would like to admit. The Supreme Court addressed many issues regarding immigration and the federal-state relationship in De Canas v. Bica (1976), in which migrant workers sued the state of California over a law that prohibited employers from knowingly employing illegal aliens - a provision also included in the new Arizona law. The migrants claimed the law infringed on a federal prerogative, but the high court disagreed. “Power to regulate immigration is unquestionably exclusively a federal power,” Justice William J. Brennan wrote for the majority. “But the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised.”
Rather than lecturing states on what they cannot do to mitigate the growing crisis of illegal immigration, or loosing the Justice Department on Arizona in search of phantom civil rights violations, Mr. Obama would better serve America by enforcing the laws that are on the books or helping draft new laws more to his liking. It would help if he started by admitting that he is a big part of the problem Arizona is trying to solve.