I am loath to disagree with my friend Heather Mac Donald about anything, much less about immigration — on which she not only wrote the book (along with VDH and Steven Malanga) but has also written a column (published by NRO this morning) that is a devastating in its refutation of Judge Susan Bolton’s wayward ruling on the Arizona immigration law. Alas, I do disagree with her suggestion that section 3 of the Arizona immigration law may be constitutionally infirm. (I realize that Heather contends this is a “potential” infirmity — she is not making a conclusive claim that it is invalid.) I write in response because her point implicates what I think is the most significant and intolerable aspect of the Justice Department’s position, which Judge Bolton swallowed whole.

Heather posits a hypothetical in which a deputy sheriff properly detains an illegal alien who turns out to have reentered after deportation (a felony that the Justice Department actually does enforce — or at least did while I was there). The federal Immigration and Customs Enforcement agency (ICE), however, tells the deputy that it is not interested in prosecuting. Yet, under section 3, the deputy now has a state-law option: he can arrest the illegal alien for failing to carry proof of legal residence. Heather worries that “if Arizona does penalize an illegal alien whom the federal government would rather ignore, then the state arguably is putting itself at odds with the federal government’s immigration priorities and creating its own immigration policy. Such a situation arguably does raise serious supremacy clause issues.” (Bolding is mine; italics Heather’s.)

With due respect, this misses the crux of the preemption doctrine. Preemption hinges not on the executive branch’s enforcement priorities but on congressional statutes. This distinction is accurately framed in Heather’s aforementioned NRO column: “A state law unconstitutionally conflicts with federal if either ‘compliance with both State and federal law is impossible, or . . . the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” (My highlighting, for reasons that will become clear presently.)

The “federal government” has not ignored the illegal alien in question. To the contrary, Congress has enacted an applicable law; the president is simply choosing not to enforce it. Similarly, Arizona has not put itself at odds with the “federal government’s” immigration priorities. It has mirrored Congress’s priorities; it is at odds only with the president’s (non-)enforcement policy. A state law does not run afoul of the Constitution’s Supremacy Clause (which the preemption doctrine vindicates) by colliding with executive branch enforcement priorities. That becomes clear when we apply the preemption test Heather quotes above: (a) compliance with both the state and federal laws is entirely possible, and (b) the state law is no obstacle to the purposes and objectives of Congress, which are evinced by federal statutes.

This gets us to the crucial distinction: Congressional statutes are law, executive branch enforcement policies are politics. Preemption is a legal question, not a political matter. As Heather aptly points out:

However Arizona law enforcement officers might have responded to any ICE “catch-and-release” directives, the prospect of local officers repeatedly calling up ICE regarding an illegal alien and being told that the federal government had no interest in detaining or deporting him could have created a sizeable public relations problem for the Obama administration. The Arizona law could have made patently manifest what is already clear enough: The federal government has no intention of enforcing the law against the majority of illegal aliens already in the country

That’s right, and this is exactly the way it is supposed to work in our system. We are a body politic not a body legal. Federal law is (and is supposed to be) very limited in what it can prevent a sovereign state from doing. Beyond those narrow limitations, the state has discretion to govern itself as its citizens see fit. Similarly, the federal executive branch is vested with vast powers but finite resources, and it has discretion over how it will husband the latter. When a state’s lawful discretionary action conflicts with the president’s lawful discretionary decision not to enforce a congressional statute, that is not a legal issue. It is a political issue. 

In such a situation, the job of the federal courts is to stay out of it. Then, in the court of public opinion, Arizona gets to demonstrate why illegal immigration is a huge problem, and the Obama administration can try to defend the de facto amnesty it seeks to confer on the illegal immigrant population. Indeed, it is only when the law throws back its veil and politics is allowed to operate, that we actually get to see that de facto amnesty is the president’s objective. That’s why the administration and its Justice Department want you to think of this as a legal case — if it’s politics, they lose . . . big.

It is very important not to permit the Supremacy Clause’s elevation of congressional enactments, which actually constitute federal law and thus the supreme expression of the national will, to devolve into an elevation of presidential priorities, which are not law at all but political choices that can, in fact, frustrate the national will by not enforcing it.

Moreover, I am wondering what happened to all the lefty caterwauling throughout the Bush years, as the commander-in-chief tried to exercise his war powers. “The president doesn’t get a blank check,” we were told again and again, lest our vaunted system of checks and balances be eviscerated. Yet, under the Justice Department’s (and hence the dutiful Judge Bolton’s) reasoning, it doesn’t matter what Congress’s statutes say — notwithstanding that immigration, unlike the conduct of war, is clearly in Congress’s purview. Nor does it matter how the states choose to govern themselves — even though the states have patent and time-honored interests in the enforcement of immigration laws. The only thing that matters is what Barack Obama decides.

That sounds like a blank check to me.