Law and Border
From the July 4, 2011, issue of NR.


On May 26, for the first time in 35 years, the United States Supreme Court issued an opinion on whether states may take action to stop illegal immigration. In Chamber of Commerce v. Whiting, the Supreme Court upheld the Legal Arizona Workers Act of 2007 against multiple challenges claiming that it was preempted by federal law. This act requires all employers in the state to use the E-Verify Internet system to check the work authorization of new hires, and it penalizes employers who knowingly hire unauthorized aliens by suspending their business licenses. (E-Verify, run by the federal government, checks data supplied by immigrants against Homeland Security and Social Security records to make sure they are eligible for employment.)

It was a 5–3 decision, with the conservative justices, plus Anthony Kennedy, siding with Arizona. Justice Elena Kagan recused herself because the Obama Justice Department had weighed in against Arizona when she was solicitor general.

The Justice Department urged the Supreme Court to take the case and participated in the oral argument on the losing side. The Obama administration has made no secret of its hostility toward Arizona and other states that want to use state powers to restore the rule of law in immigration. The Justice Department’s pending lawsuit against Arizona’s SB 1070, a 2010 law governing police procedures when officers encounter illegal aliens, is another example of this hostility.

Arizona’s victory in the high court also gave an unmistakable green light to the other states. A week later, the Alabama legislature passed HB 56 — the strongest law against illegal immigration that any state has enacted to date — and on June 9, Gov. Robert Bentley signed it into law. This measure, known as the Beason-Hammon Act after its main sponsors, includes everything that Arizona has done on the subject, plus a good deal more: prohibiting illegal aliens from attending public universities in the state, providing for civil forfeiture of vehicles used to knowingly transport illegal aliens, prohibiting landlords from knowingly harboring illegal aliens in apartments, and requiring public schools to count the number of illegal aliens receiving a free K–12 education at taxpayer expense.

Behind Alabama and Arizona are a growing number of other states that have taken significant steps down the same road, including Missouri, Mississippi, South Carolina, Georgia, Oklahoma, and Indiana. And the list of states seeking to deter illegal immigration is sure to grow in the future.

These states are motivated by two powerful forces: public frustration over lax enforcement of federal immigration laws, and the fiscal burden that illegal immigration imposes on taxpayers. The Federation for American Immigration Reform calculates that the net fiscal burden caused by illegal immigration is $100 billion per year for all levels of government combined. That’s a net figure, taking into account any taxes that illegal aliens may pay.

About $80 billion of that total falls at the state and local levels — meaning that state and local governments have to pick up the tab when federal immigration laws go unenforced. The biggest items are free K–12 education for children in illegal-alien households; costs incurred through the arrest, trial, and imprisonment of illegal aliens who commit additional crimes; and medical costs imposed on public budgets by illegal aliens. In effect, the federal government’s failure to enforce immigration laws is a massive unfunded mandate. And unlike the federal government, nearly all of the states have a constitutional obligation to balance their budgets, so these costs cannot be ignored.