Tuesday, July 13, 2010


     The Obama Administration has recently filed a lawsuit in federal court seeking to overturn and stay the application of the anti-illegal immigration bill passed by the Arizona legislature. The petition makes the claim that the law is unconstitutional because it conflicts with existing federal law, and federal law as described in the "supremacy clause" of the Constitution (Article VI Clause 2) pre-empts state law. The Arizona legislature acted within the long term context of federal government failure to enforce federal law with respect to border control and apprehension of illegal immigrants. The estimated 400 thousand illegal immigrants residing in Arizona is a testament to that fact. In recent months violence has escalated on Arizona's border with Mexico resulting in deaths of border patrol agents, Arizona residents and illegal aliens. Nonetheless, the government’s petition says that a "state may not establish its own immigration policy or enforce state laws in a manner that interferes with the federal immigration laws. The supremacy clause of the Constitution is a powerful tool which the federal courts routinely uphold.
     However, the case is not completely clear cut. A law professor who helped write the Arizona law points out that it only prohibits "conduct already illegal under federal law." Also, the Arizona law requires local law enforcement officials to turn over suspected illegals to the Border Patrol. Thus, it can be argued that the law does not contradict or "interfere" with federal law, it merely complements those laws. Also, given the level of violence and criminal behavior attendant with illegal immigration, Arizona might also argue that their law is a public safety issue for which they have primary responsibility. Harvard law professor Gerald Neuman believes that Arizona could also argue that it has overlapping authority in law enforcement. Examples of this would be bank robberies and drug enforcement measures in which federal, state and local authorities cooperate and have dual jurisdiction.

     Whatever the legal nuances of the case may be, the underlying political issues are no doubt driving the Obama Administration's decision to file the law suit. They have not attempted to explain who besides the illegals would benefit from overturning the law. Since the Administration is requiring that "comprehensive immigration reform" be passed by the Congress before it undertakes any enhancement of border control, it is clear that nothing will be done for the foreseeable future to deal with the financial and law enforcement problems in the border states. The political motivations for this are obvious. The Democrat party is the home of a wide spectrum of pro-immigration and quasi-open border advocates. Organized labor sees millions of new members in the construction and service trades if the current 11-12 million illegals residing in the U.S. are granted some kind of "amnesty" with a path to citizenship, as well as millions more coming across the border each year. The Catholic Church sees millions of new parishioners and a talent pool for the ever decreasing priesthood. "Humanitarian" groups believe that it is a human right to be an illegal immigrant and are openly disdainful of the economic impact and law enforcement issues. Domestic Hispanic groups have formed or adopted agendas supportive of what would essentially be an open border policy. The Democrat Party sees millions of new members from a group which, although somewhat culturally conservative, are predominately under educated, low wage workers, susceptible to big government theories of income redistribution and advanced welfare state programs. The government of Mexico encourages and assists illegal immigration. Exporting millions of their poorest citizens relieves social and economic pressures on municipal and state governments as well as the federal government of Mexico. A bonus for the federal government is the remittance of several billion dollars each year from illegal workers in the U.S. to their families in Mexico; a decided shot in the arm for the perpetually weak Mexican economy. In fairness, it should be pointed out that there are large as well as small employers in the U.S. who benefit from illegal immigrants willing to work for low wages and no benefits. Agriculture, construction, meat packing and the service industries lobby against strict border control. This of course makes the best solution to illegal immigration obvious. Strong penalties for employing illegals would dry up the labor market and discourage wholesale immigration. A guest worker program for temporary employment with secure identification cards that had to be periodically renewed would reduce the sudden employment impact of strict employment legislation on U.S. businesses. A central government computer base for employers to check social security cards for accuracy would identify legal immigrants and U.S. citizens. The border would still have to be secured because of the widespread entry of drug dealers and other criminals. All of this is not enough for many of the pro-immigration groups mentioned above so the battle will have to be fought out in the Congress.

     The political question is thus, which cost-benefit analysis will turn out to be the most accurate; the Democrats who see political advantage in resisting and or ignoring the illegal immigration issues and now are taking a stand as the defender of the interests of Hispanics whether illegal or not, or the Republicans who see an advantageous electoral issue in the Administration's position. While a large majority of Democrats approve of the Administration's lawsuit, a larger majority of Republicans oppose it. Nationwide, and without regard to party affiliation, fifty percent of Americans oppose the government's lawsuit and only thirty-three percent approve. While Obama and the Democrats have demonstrated in enacting the recent health care legislation, that ideology trumps public opinion, that position may well come back to haunt them. Disdain for border enforcement may just add to their electoral problems this November and in 2012.

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