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Bordering on Sense


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Arizona and other states suffering from out-of-control illegal immigration won an important if partial victory in the Supreme Court today. In a rebuke of the Obama administration, all eight justices (Elena Kagan recused herself) upheld Arizona’s requirement that police officers determine the immigration status of anyone they stop, detain, or arrest if a “reasonable suspicion exists that the person is an alien unlawfully present in the United States.” This was the provision relentlessly attacked by President Obama, who has now made it abundantly clear that strong immigration enforcement is not the top item on his agenda.

The Court threw out three other provisions of SB 1070, including one that made it a misdemeanor for an unauthorized alien to seek work in Arizona. But taken in perspective, these aren’t critical to the effectiveness of Arizona’s law. Last year, in U.S. Chamber of Commerce v. Whiting, another big loss for the Obama administration, the Supreme Court upheld Arizona’s requirement that employers use the E-Verify system before hiring new employees — and affirmed the state’s authority to yank the business license of any employers that knowingly hire illegal aliens. Mandatory E-Verify will be much more effective in preventing illegal employment than Arizona’s threatened misdemeanor charge.

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The majority of the provisions of SB 1070 are now good law. The Obama administration didn’t even challenge almost a dozen parts of the law, such as one that makes it a crime to stop a motor vehicle to pick up day laborers. The administration lost in the district court on its challenge to other provisions, such as one that allows the impoundment of vehicles used in transporting illegal aliens.

But as noted, this is only a partial victory. For example, in upholding the core provision of the law, the justices read it narrowly and left the door open to challenges to the way it is enforced. Also, Justices Scalia and Thomas got it right when they argued in their dissents that all four provisions of SB 1070 should have been upheld. There is no conflict between federal immigration law and SB 1070.

As Scalia notes, Arizona has “moved to protect its sovereignty — not in contradiction of federal law, but in complete compliance with it.” Arizona’s laws do “not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively.” As Scalia scathingly concludes, “If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.” There is a reason we have 50 states instead of one, and the states are not mere administrative subdivisions of the federal government. Each has its own powers and its own interests, a fact that is of particularly acute interest when the federal government is failing to meet one of its fundamental responsibilities, which is precisely what is happening with illegal immigration.

Today’s decision, coupled with Whiting, ensures that states now have the tools they need not only to identify illegal aliens and prosecute those who smuggle and transport them but also to make it difficult for them to find employment. It also certifies that the states are to remain in a deeply subordinate role on immigration, which is unfortunate: If the Obama administration were half so energetic in enforcing federal law as it is in undermining state laws, Arizona’s efforts would be superfluous. But that is not so, and on the issue of immigration the states remain dependent upon a federal government that is not to be depended on.



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