Wednesday, July 7, 2010

A Lay Critique of U.S. vs. Arizona

The statements in quotes are from the U.S. vs. Arizona lawsuit brought by the Department of Justice (DOJ).
“In our constitutional system, the federal government has preeminent authority to regulate immigration matters.”
No one denies this but within the Constitutional and other authority reserved to the federal government states may exercise their police power in a manner that affects aliens as long as that exercise is consistent with the federal immigration laws.
“The nation’s immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests …. The DOJ argues further that SB 1070 will “…interfere with vital foreign policy and national security interests by disrupting the United States’ relationship with Mexico and other countries.”
This seems a little farfetched since the U.S. relationship with Mexico is already ruptured by Mexico’s unwillingness to secure its northern border and discourage its citizens from entering the U.S. illegally. This is not a one way street. If Mexico wishes to be treated as a good neighbor, it needs to behave like one and stop the flood of its nationals violating the border.
Our national security interests are severely jeopardized by Mexico’s policies toward the U.S. If we had agents on both sides of the border working together to stem the tide of illegals, that would be a basis for a more favorable foreign policy towards Mexico. Since that is not the case, any complaints from Mexico should be rebuffed with a reminder of its failures to help stop the hemorrhaging at the border.
I find the argument regarding foreign policy and national security to be very weak. It suggests that our government can be bribed into establishing foreign policies inimical to its own best interests. It is neither a sound foreign policy nor in the interests of national security to constrain any enforcement of the laws of our country. Sure we want Mexico’s cooperation in the drug wars because that is in the best interests of both countries. The trade off between vital foreign policy interests and open borders and the abandonment of internal enforcement is not acceptable.
As far as other countries are concerned, we need to make clear that they need to control the illegal passage of their nationals to the U.S. via all means at their disposal and that this is what we expect them to do.
The humanitarian aspect of government policy is well-understood. There are aliens who have a well-founded fear of persecution or who have been the victim of a natural disaster and are therefore of humanitarian interest. These aliens are, nevertheless, not free to roam the U.S. at will before their status has been confirmed and documented. Generally, those requesting political asylum are held in detention until the validity of their fear of persecution can be determined. Victims of natural disasters such as the Haiti earthquake are admissible based on decisions made by the federal government and documented in an appropriate way. They will not remain undocumented.
“The United States understands the State of Arizona’s legitimate concerns about illegal immigration, and has undertaken significant efforts to secure our nation’s borders. The federal government, moreover, welcomes cooperative efforts by states and localities to aid in the enforcement of the nation’s immigration laws.”
The Justice Department has a strange way of showing that it welcomes cooperative efforts to support the federal statutes on immigration. It’s not likely to generate much support of federal efforts in that regard by suing the State of Arizona and its governor. Instead the feds should be supporting the Arizona efforts to solve the problem the federal government has chosen to ignore. The feds could also provide model legislation to the other states patterned after the SB 1070 and that it deems consistent with the federal statutes or within executive power to grant.
The feds want to focus on the “real” criminal elements, the drug runners and dealers, the international gangs, and the other criminals among the illegal aliens. While this is commendable, it is not enough and it is certain to fail unless significant resources are committed to the larger problem. It is not as though the criminal elements within the larger population of illegals can be easily identified or that all other illegals who have already shown their disdain for the rule of law will remain crime free. How many times have we read about crimes like DUI resulting in death or injury that were committed by your ordinary run-of-the-mill illegal?
The DOJ apparently feels that SB 1070 represents “…policy that, in purpose and effect, interferes with the numerous interests the federal government must balance when enforcing and administering the immigration laws and disrupts the balance actually established by the federal government.”
The federal government has not established any sort of balance. There is a gross imbalance between the requirements of the law and the attempts by the Administration to pander to foreign powers. There should be no need to balance anything against enforcing the immigration laws. Whatever balance the feds think they have established is clearly not working and is not consistent with the law. If the there is to be any balance, it must be a balance explicitly spelled out in the law in the national interest not some arbitrary executive department decision to subvert the law and disable our ability to secure our borders. What the DOJ seems to be suggesting that anything that might be more effective than the current policies must be summarily dismissed because “it wasn’t invented here (in Washington).” It has not examined SB 1070 from the point of view of the state nor of its potential for solving the illegal alien problem the feds have chosen to ignore. The feds have placed too much emphasis on just what can be accomplished at the border. They have ignored the obvious fact that if illegals and other criminals believe they will be home free if they can escape the immediate environs of the border, the border will never be secure and the criminal elements will flourish.
The Constitution affords the President of the United States the authority to “take Care that the Laws be faithfully executed. U.S. Const., art. II § 3.”
Why is it then that the President has failed in that duty? Why has he effectively declined the assistance that the Border States can provide in helping to execute the immigration laws? More specifically, why is it the President has failed to faithfully execute Section 8 USC 1324(a)(1)(A)(iv)(b)(III)?
“A person (including a group of persons, business, organization, or local government) commits a federal felony when she or he: assists an illegal alien she /he should reasonably know is illegally in the U. S., or who lacks employment authorization, by transporting, sheltering, or assisting him or her to obtain employment, or encourages that illegal alien to remain in the U.S. by referring him or her to an employer or by acting as employer or agent for an employer in any way, or knowingly assists illegal aliens due to personal convictions.”
“…the President has broad authority over foreign affairs. Immigration law, policy, and enforcement priorities are affected by and have impacts on U.S. foreign policy, and are themselves the subject of diplomatic arrangements. …. The INA also vests the executive branch with considerable discretion in enforcing the provisions of the federal immigration laws, generally allowing federal agencies to ultimately decide whether particular immigration remedies are appropriate in individual cases.”
Is the DOJ suggesting that the President has or could have a foreign policy or a diplomatic arrangement with Mexico that permits large numbers of illegal aliens to remain in the U.S. with impunity? Federal agencies should have some latitude in deciding the remedies that are appropriate in particular cases but neither the President nor any federal agency should have the authority to impose a blanket remedy for all cases.
“Congress vested substantial discretion in the President and the administering federal agencies to adjust the balance of multiple interests as appropriate – both globally and in individual cases.
In exercising its significant enforcement discretion, the federal government prioritizes for arrest, detention, prosecution, and removal those aliens who pose a danger to national security or a risk to public safety. Consistent with these enforcement priorities, the federal government principally targets aliens engaged in or suspected of terrorism or espionage; aliens convicted of crimes, with a particular emphasis on violent criminals, felons, and repeat offenders; certain gang members; aliens subject to outstanding criminal warrants; and fugitive aliens, especially those with criminal records.”
There is no doubt that the federal enforcement priorities are correct but to use that as an excuse for ignoring the much larger number of illegal aliens in the U.S. is an abdication of responsibility. All the more reason why the feds need the help of state authorities in addressing the broader issues while the feds concentrate on criminals, terrorists, spies and traitors. Both functions can be performed effectively if tools like those contained in SB 1070 are adopted by all of the states and ultimately blessed with appropriate language in the federal statutes. The DOJ seems to be suggesting that it can’t be bothered with run-of-the-mill illegal aliens. In effect, it is declaring open borders for everyone unless they wear badge identifying them as hardened criminals. It is foolhardy to think that by some sort of legal profiling the feds can sort out the hardened criminals without paying any attention to all the other illegals. There is only one way to solve this problem and that is to sort them all out based on the needs of our economy and the ability of needed foreign workers to pass a background check and a medical exam.
Of all the bone-headed ideas, one of the worst is the idea that somehow the border can be secured merely by improving staffing, infrastructure, and the rules of engagement at the border. Vigorous and continuous internal enforcement is the sine qua non of in depth border security. This can be facilitated by mandatory E-verification of immigration status at work locations and by the other measures contained in SB 1070.
“Through the INA, Congress set forth the framework by which the federal government determines which aliens may be eligible to enter and reside in the United States, which aliens may be removed from the United States, the consequences for unlawful presence, the penalties on persons who violate the procedures established for entry, conditions of residence, and employment of aliens, as well as the process by which certain aliens may ultimately become naturalized citizens of the United States. See 8 U.S.C.§ 1101, et seq.”
Familiarity with these provisions enables local authorities to provide the cooperation and assistance INS requires to do its job effectively. To deny this source of assistance undermines the ability of the INS to discharge its responsibilities to the American people. More privately operated detention centers, especially in the Border States, with embedded immigration judges or justices of the peace where local authorities can deliver all the illegals they apprehend will have no impact on the deployment or effectiveness of other government agents or entities. Given a fairly rigid set of criteria for deportation, almost anyone could perform that function and expedite the removal of illegal aliens from the detention facilities and from the U.S.
The DOJ has placed a great deal of emphasis on foreign relations, even suggesting that if we were to enforce our immigration laws that would jeopardize the treatment of U.S. citizens abroad. The difference that needs to be made clear is that U.S. citizens abroad generally follow all the rules and therefore there would be no basis for their ill treatment. Like the U.S., other countries welcome legal immigrants and visitors because they are an important part of their economies. Can you imagine Mexican authorities swooping down on Acapulco and arresting all of the well-heeled American tourists just to get even for our repatriation of illegal aliens? Ridiculous! They would be shooting themselves in the foot and assuring that few, if any, American tourists would visit there again.

1 comment:

  1. I Igor family first victims Arizona law see at


    Should Obama be afraid to be stopped?

    Only papers they have were copies of Obama birth certificate. Police officer say this not good enough to even get his son on little league team much less get adult across border(much less be president of United States). See Birth Certificate