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


H.R. 2164, drafted under the watchful supervision of the Chamber and introduced on June 14 by Rep. Lamar Smith (R., Tex.), chairman of the House Judiciary Committee, achieves exactly that. It prohibits the states from suspending the business licenses of employers who knowingly hire unauthorized aliens. In other words, it stabs Arizona in the back right after the state’s victory in the Supreme Court. Nothing would please the Chamber and the Obama administration more.

The members of Congress who back Smith’s bill suffer from the same delusion that grips all too many politicians in Washington: that the ultimate solution to any problem lies in passing a law in Congress. What they fail to grasp is that the political will to enforce immigration laws, and the resources to do so, are far more important. If the federal immigration laws that are already on the books were adequately enforced, there would be no illegal-immigration problem.

Aliens have self-deported from Arizona not because they think U.S. Immigration and Customs Enforcement (ICE) will start enforcing federal laws more aggressively, but because they know state and local officials are very serious about enforcing state laws. When Obama’s Department of Homeland Security began halting worksite enforcement raids across the country, Arizona’s employer-sanctions law was kicking in. By the end of 2009, Maricopa County officials had investigated and/or raided more than two dozen businesses suspected of knowingly hiring unauthorized aliens. Word gets around very quickly when a law is being enforced, and many illegal aliens left the state on their own initiative. The same will happen in Alabama in September, when that state’s new law goes into effect.

To take the states out of the enforcement game would be the height of foolishness. ICE has a mere 6,000 interior (i.e. non-border) enforcement agents to cover the entire country. In contrast, state and local governments can bring nearly 800,000 law-enforcement officers to bear on the problem. That is why the Chamber of Commerce is so eager to pass Smith’s bill and end the threat of state-level enforcement. That is also why the Obama administration and the ACLU launched a legal jihad against Arizona — to send a message to the other states.

With Whiting, the Supreme Court has dealt a decisive blow to the legal position of the Obama administration and the ACLU. Now is the time for the states to press forward and make additional progress in reducing illegal immigration.

Hopefully, after 2012, a new administration in Washington will be interested in vigorously enforcing immigration laws and will recognize that it is difficult, if not impossible, for the federal government to achieve that goal alone. The only way to end illegal immigration is for both the federal government and the states to take to the field, working together to restore the rule of law.

— Kris W. Kobach, the secretary of state of Kansas, is a co-author of Arizona’s SB 1070 and Alabama’s HB 56 and has defended numerous state and local laws concerning illegal immigration in court. This article originally appeared in the July 4, 2011, issue of National Review.


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