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


If a state can encourage illegal aliens to go home, however, the fiscal burden can be reduced dramatically. State laws like Alabama’s and Arizona’s are based on the principle of attrition through enforcement: If a state ratchets up the level of enforcement, illegal aliens will weigh the costs and benefits of remaining unlawfully, and will leave. Using calculations from a study by Robert Rector of the Heritage Foundation, we can expect that for every illegal-alien-headed household that returns to its country of origin, on average, taxpayers realize a net fiscal benefit of $19,588 per year.

Arizona’s success in encouraging illegal aliens to self-deport has been impressive thus far. Between 2008 and 2010, the population of illegal aliens in the United States decreased by 7 percent, but in Arizona it decreased by 18 percent. This exodus is widely attributed to two law-enforcement efforts: the implementation of the Legal Arizona Workers Act, beginning Jan. 1, 2008, and the contemporaneous enforcement of Arizona’s 2005 anti-smuggling law by Sheriff Joe Arpaio of Maricopa County, which contains the majority of Arizona’s population and is the hub of alien-smuggling operations into the United States.

While it is undoubtedly true that some of Arizona’s illegal aliens simply packed their bags and moved to states such as California, where liberal laws welcome them, it is also true that many left the United States altogether. This was dramatically illustrated in early 2008, when legislators from the Mexican border state of Sonora sent a delegation north to Arizona. Their mission? To complain to Arizona officials that the Legal Arizona Workers Act was sending too many Mexican nationals home too quickly, and that Sonora could not handle the burden on its public services and infrastructure.

Although the Supreme Court’s decision in Whiting did not directly address Arizona’s SB 1070, it greatly boosts the prospects of success not only for that law, but also for immigration-enforcement bills in a number of other states. Realizing this, the ACLU, the Mexican American Legal Defense and Education Fund (MALDEF), and other open-borders groups launched into damage-control mode in the wake of the decision. They tried to spin the Whiting opinion as an extremely narrow holding that has no bearing on other laws or other states.

This mischaracterization may have gotten a lot of play in press releases and cable-news appearances, but it won’t hold up in court. The Supreme Court’s opinion made clear that state and local governments have a significant role to play in deterring illegal immigration.

The ACLU’s challenge to such laws has rested principally on the concept of “conflict preemption.” This concerns cases in which a state or local law poses an obstacle to the accomplishment of Congress’s objectives as spelled out in federal law. If that happens, the state law is invalid.

The problem for the ACLU is that there is no federal law prohibiting states and cities from taking steps to stop illegal immigration. On the contrary, there are numerous federal statutes inviting state assistance in the enforcement of immigration laws. So the ACLU is reduced to arguing that the state and local laws are somehow in “tension” with federal law, even if there is no conflict on the face of the statutes.

The Whiting decision made clear that that argument will no longer fly: “Implied preemption analysis does not justify a ‘free-wheeling judicial inquiry into whether a state statute is in tension with federal objectives’; such an endeavor ‘would undercut the principle that it is Congress rather than the courts that preempts state law.’” And that’s precisely the point. Congress has never acted to prohibit state and local laws that discourage illegal immigration, so the open-borders Left is asking the courts to do it instead.