April 24, 2012
Musings on illegal immigration, federalism, and enforcement approaches
I have not yet given too much thought to the formal legal issues surrounding Wednesday's SCOTUS arguments concerning the legality of Arizona's controversial immigration law, SB 1070. But I rather liked the themes of this CNN commentary on the topic by Tamar Jacoby, president of ImmigrationWorks USA, which is headlined "What if justices let states make immigration policy?". Here are excerpts from the piece:
As recently as six years ago, it was conventional wisdom among lawyers, legislators and policy advocates that the states had no role in setting immigration policy. Since then, there has been a federalist revolution of historic proportions.
One-third of the states now mandate that some employers enroll in the federal employment verification program, E-Verify. Seven states require it of all but the smallest employers. Five have enacted policing laws similar to Arizona's SB 1070 that allow local police to inquire about the immigration status of people they stop for other reasons who they suspect are in the country illegally.
No wonder the Supreme Court is weighing in, hearing arguments this week on the Justice Department's challenge to SB 1070. Refereeing turf battles between Washington and the states is one of the court's first responsibilities.
But something is troubling. The court is considering and will eventually rule on one very particular, polarizing state stratagem. That doesn't come across as impartial refereeing. Whatever the outcome, it will feel like judges making policy -- either endorsing or outlawing police questions about immigration status. If the justices are going to encourage federalism, I'd like to see them encourage it more evenhandedly, opening the way to a broader array of state initiatives, including those that go beyond enforcement....
The first waves [of state immigration laws] were all enforcement measures: voters and lawmakers trying anything to get control, first by regulating landlords, then limiting hiring, then using local police and even public school teachers to inquire about people's immigration status. But recently, a handful of states have tried to go beyond enforcement.
Utah pioneered the new path. Three-part legislation passed in spring 2011 combined an Arizona-like policing measure with a state-run guest worker program to bring in legal workers from Mexico, plus an initiative to grant work permits to unauthorized immigrants already living and working in Utah. This year, lawmakers in five other states as different as Kansas, Oklahoma, New Mexico, Vermont and California floated similar worker authorization bills. Legislators in many states express interest in guest worker programs. It's not just immigrant rights advocates who are driving the measures -- many are backed by surprising coalitions.
In some instances, business is engaged. Even in the downturn, farmers, nonfarm seasonal employers and other industries that rely on physical labor need immigrants to do jobs for which there are few willing and able Americans. In some states, the sponsors are pragmatic conservatives. Republican state Sen. Curt Bramble of Utah is as eager as Arizona's enforcement-minded sheriffs to get control of illegal immigration.
But Bramble believes it will take a combination of enforcement and realism about the unauthorized population. "Most aren't going home," he says, "no matter what we do. And the states are stuck with the costs. We have to educate, medicate and incarcerate them. But we can't let them work. It's the biggest unfunded mandate in history."...
The problem for Utah is that the Obama administration, determined to limit states' rights and keep the lid on state immigration enforcement, hasn't let the state implement any of its initiatives. Unlike states pursuing enforcement alone, states seeking to combine enforcement with other measures can't simply take matters into their own hands.
A state-run guest worker program can't bring legal workers across the border without cooperation from federal authorities. And without permission from Washington, a state-run worker authorization initiative would leave employers and employees dangerously vulnerable to federal immigration enforcement.
The result is a dramatic asymmetry in the experiments in immigration policy being conducted in the laboratories of democracy. It's no accident that the Supreme Court, which many observers see as inclined to encourage state initiatives, is about to consider the merits of yet another enforcement measure....
As many state lawmakers are starting to grasp, the best antidote to illegal immigration is a legal immigration system that works. Let them experiment -- as freely as possible. Over time, their experimentation just may point the way for Congress.
April 24, 2012 at 10:49 PM | Permalink
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"determined to limit states' rights"
Immigration policy is one of those things that are inherently national in scope, especially if the state policy is in effect a nudge to the feds to do more. States don't have the "right" to do this at some point even if we want "experimenting" to go on.
States also don't have the power to freely "experiment" by setting up treaties or other such agreements with foreign nations, setting up "gentleman agreements" with them regarding workers or such. Congress has the power to control interstate commerce, including in people, and the President executes the policy. The SC might want "to encourage state initiatives" but that isn't quite their bailiwick either.
Posted by: Joe | Apr 25, 2012 10:29:57 AM
Yeah, lets just let them experiment. I'm sure the states will figure it out. They figured out Jim Crow so quickly and what the hell, so you scare a couple million Mexicans while you toy around at the edges. Sheriff Joe will figure it out eventually.
Posted by: Matt | Apr 25, 2012 11:47:36 AM
I'll be interested to see whether those who are vociferous in support of states' rights in the context of legalizing pot are equally vociferous in support of the law adopted by the state of Arizona.
Posted by: Bill Otis | Apr 25, 2012 12:34:01 PM
Nice phrasing, Bill. But the lack of symmetry in your argument/comment is telling. Once phrased correctly, the difference between the two subjects becomes obvious:
"I'll be interested to see whether those who are vociferous in support of states' rights in the context of legalizing pot are equally vociferous in support of [states' rights in the context of immigration law]."
As explained by Joe, immigration law is not an area that states have any right to regulate. Drug laws, however, are almost the classic example of the police power. Once could quite easily maintain consistency in believing that states rights on drug policy should be wide while states rights on immigration policy should be narrow or non-existent.
Posted by: anon | Apr 25, 2012 12:44:48 PM
Your argument is ipse dixit. The druggie side lost Raich v. Gonzales and is faring even worse in Congress, so we know that drugs are, according to the judicial and legislative branches, a federal as well as a state concern. I concede that this does not comport with the views of NORML or drug dealers.
Whether illegal immigration is also a matter of concurrent jurisdiction, is something we'll know better when today's case gets decided. The early reports are that the Justices seemed sympathetic to the most controversial provision of the Arizona law.
P.S. I don't think your re-phrasing of my comment adds to your argument, but even if it did, it's the oldest and most transparent trick in the world to re-word an opponent's statement to set it up for a pre-packaged rebuttal.
Posted by: Bill Otis | Apr 25, 2012 1:19:00 PM
"it's the oldest and most transparent trick in the world to re-word an opponent's statement to set it up for a pre-packaged rebuttal."
Ahh, but it's only a "trick" if it changes the substance of your comment. My re-wording did not. The aim of your comment was about the consistency of those who tout states' rights in marijuana policy. I argued that states' right in the context of marijuana policy are not easily equated with states' rights in the context of immigration policy (i.e. the law adopted by the state of Arizona). Simply put, my re-wording did not change the substance of your statement; rather, it clarified the issue at hand.
And that, Bill, is no "trick."
Posted by: anon | Apr 25, 2012 2:36:37 PM
Further, Bill, your appeal to authority and what is likely to happen is not convincing and, frankly, irrelevant to the subject at hand. Your original comment (and my response to it) had nothing to do with what is likely to happen or what the legislative and judicial branches would do. Of course Raich came out the way it did. And of course the Court in today’s case may very well say that states have a role in immigration policy. But how the Court decides such cases says nothing about whether the position of states' rights advocates in the context of drug policy should/would be consistently applied to the context of immigration policy.
Ultimately, your comment sought to impugn the consistency of those who support states' rights on drug policy. I defended their consistency, suggesting that it is not necessarily inconsistent to believe that the "context" of drug laws is vastly different than the "context" of immigration policy. You changed directions and said "oh but the courts and legislature don’t agree." Whether the courts/legislature agree says nothing about the consistency of beliefs.
Do you honestly deny that the distinction between immigration policy and drug policy in the context of states’ rights is so irrational that one must necessarily be inconsistent to support one and not the other?
Posted by: anon | Apr 25, 2012 2:45:27 PM
well no offense but the federal govt has had decades to do something and has FAILED big time! So they should not be suprised when someone else take the job!
as for this statment!
"A state-run guest worker program can't bring legal workers across the border without cooperation from federal authorities. And without permission from Washington, a state-run worker authorization initiative would leave employers and employees dangerously vulnerable to federal immigration enforcement."
IF it's one of the border states and it's gov has the balls to override the idiots in washington they could very well setup and allow people to move into their state from ourside the country!
Posted by: rodsmith | Apr 25, 2012 3:14:34 PM
The patterning of state legislation on immigration and marijuana is interesting. It speaks to me of the failure of congress to coherently address obvious problems with federal legislation. I guess that has something to do with their approval rating being in the teens.
A couple of days ago The Wall Street Journal had a small peice that our immigration was now negative. More illegal immigrants leaving than entering the country. Fancy that.
Posted by: beth | Apr 25, 2012 3:51:22 PM
"Further, Bill, your appeal to authority and what is likely to happen is not convincing and, frankly, irrelevant to the subject at hand."
How odd to find, on a legal blog no less, the notion that an appeal to authority is unconvincing and irrelevant. You admit your side lost Raich, but don't bother to take on its reasoning, simply insisting (again merely through ipse dixit) that it's "unconvincing." But I have already conceded that it's unconvincing to the pro-druggie side and to drug dealers.
You can have your allies, and I'll have mine (Stevens (writing), Souter, Ginsburg, Breyer, Kennedy and Scalia).
Today's immigration case is about states' rights and so is much of the debate about drug legalization. On another thread today, you accuse Justice Alito of being result-oriented, while result-orientation shines through your entire discussion.
You would like legal availability for drugs that are presently illegal under federal law, so, then, states' rights is good. You don't like state measures against illegal immigration so, then, states' rights is bad. THAT, anon, is true result-orientation. And the only consistency is in following the preferred liberal result.
Posted by: Bill Otis | Apr 25, 2012 3:51:57 PM
Immigration into the USA, legal and otherwise, is largely a function of how our economy is doing. Our economy is staggering along in what Obama likes to call a "recovery," but everyone else knows is a sick puppy. Thus the reverse immigration.
Posted by: Bill Otis | Apr 25, 2012 4:18:18 PM
That's right, immigration is a function of economics and business needs.
Posted by: beth | Apr 25, 2012 4:59:01 PM
Many enthusiastic about "state rights" on pot (fwiw, I don't like the term myself; states have powers in my book) think Raich was wrongly decided, think the ultimate concerned is individual liberty not "state rights" (again, fwiw, that's my ultimate concern; on CC grounds by itself, the ruling is pretty reasonable) or think the ruling was right but that it still is a lousy policy and states should have more discretion.
On SB1070, many are not really big on the federalism point. The protests often were concerned about racism etc. Like the 1960s, federal power there is at best a means for many people. Regardless, on the merits, it is far from "ipse dixit" to treat regulation of medicine and regulation of immigration and border control (or as one person at ACS Blog noted, a reverse commandeering, where the states are in effect commandeering federal resources by referring cases to them) differently.
Some of the comments made by the justices during the orals are rather depressing, including Scalia against going for the FOX News approach and Roberts apparently not seeing how states strictly enforcing federal laws that the feds selectively prosecute is not a problem because hey the feds can just (after the states cause an international incident by targeting them) not expel the people referred to them.
Posted by: Joe | Apr 25, 2012 5:17:52 PM
If immigration is a matter of economy and business needs, it is a matter of national and international economy and business needs. The feds bailiwick.
Of course, helped by the myopic focus they seem to have, the USSC very well might uphold at least part of the law now being examined. It won't be the end of the controversy anyway.
Posted by: Joe | Apr 25, 2012 5:31:31 PM
In my opinion , the following are not synonymous :
Migrant & immigrant
Migrate & immigrate
Migration & immigration
An easy , albeit excitingly dangerous , way to resolve the issue would be to dissolve all three branches of state and federal governments , then sit back and watch what happens .
Posted by: Docile Jim Brady ¦ Nemo Me Impune Lacessit | Apr 25, 2012 6:01:06 PM
Once again, you've got it all wrong, Bill.
"You don't like state measures against illegal immigration."
I never said that. In fact, I support Arizona's law -- not that it matters. The only point in our discussion is that the distinction between immigration policy (generally a federal, national concern) and drug laws (generally a police power) in the context of states’ rights is not so irrational that one must necessarily be inconsistent to support states' rights in one and not the other. It is your ideological one-sidedness that blinds you to thinking everyone not in agreement with you must be inconsistent on their principles.
Posted by: anon | Apr 25, 2012 6:45:02 PM
If you'd said before now that you support Arizona's law, I never would have poked at you about it. Cheers.
Posted by: Bill Otis | Apr 25, 2012 7:37:05 PM
There should be no borders and no drug laws. The right of a free person to travel where he/she chooses and to ingest what he/she chooses should not be subject to the whim of authoritarian government regulators.
More individual liberty. Less government.
Posted by: Calif. Capital Defense Atty. | Apr 25, 2012 9:52:25 PM
There should be some drug laws. A law that says you cannot smoke pot while driving is not in my book an act of fascism, e.g. The overall criminalization of drugs is a grave mistake though the path away from it will be piecemeal. The path to full legalization should come in installments.
I don't think we quite live in a world where we have no borders, though that is a nice thought. The United States itself was an early Common Market approach that took years to stick together for the long haul, a civil war coming first. It still would be one where citizens, legal residents, recent residents etc. would have different rights and responsibilities to some degree.
Posted by: Joe | Apr 26, 2012 10:27:24 AM
have to give joe this one! i agree with both statements!
all countries and societies have a right to control who comes into them. That right is even setup in the UN charter asa well.
Posted by: rodsmith | Apr 26, 2012 11:05:37 AM
Lyle Lovett answered the question posed in the ImmigrationWorks headline on Texas' behalf.
And Bill, please let me know if the sentiments expressed at that link differ significantly from anything you've ever seen me write in "support of states' rights in the context of legalizing pot."
Posted by: Gritsforbreakfast | Apr 27, 2012 10:50:26 AM