Yes, We Can Enforce . . . As Long As Uncle Says It’s Okay

I like Rich’s column this morning on the Supreme Court’s E-Verify decision, which upheld an Arizona law targeting employers of illegal aliens. I only wish I could be as optimistic as the boss is.

As I argued in my weekend column, the Supremes did not so much endorse Arizona’s regulation as rule that the federal government is preeminent in the field of immigration enforcement. Arizona’s law was upheld only because Congress explicitly permitted the states to use their power to license businesses as an enforcement tool. As for the requirement that Arizona employers use E-Verify, it was upheld only because (a) Congress did not forbid states from imposing this requirement and (b) the executive branch (i.e., the Bush administration) had deigned to opine that Arizona’s E-Verify mandate was “permissible.”

This framework turns logic and constitutional law on their head. As I contend in the column, immigration enforcement is an inherent power of the states. It is federal power that is suspect — historically, constitutionally, and practically. The premise that a state must have the blessing of the national government to take rudimentary defensive measures against trespassers in its territory creates a much more perilous situation than we seem to realize. It means the states no longer have basic police power. If you don’t have the sovereign’s natural right of self-defense, you are no longer sovereign. If the states are no longer sovereign, then the foundational understanding of the compact creating our federal republic no longer obtains. 

If I were the Alinsky Obama administration, here’s what I would do, today: Propose an aggressive, comprehensive scheme of federal immigration enforcement, closing all the loopholes in prior legislation which states use to justify their own enforcement measures (such as the Arizona statute the Court upheld last week). I would even say the proposal was inspired by the Supreme Court’s inspiring Whiting decision, and I’d quote Chief Justice Roberts’s reaffirmation (in the majority opinion) of the broad distortion that “the power to regulate immigration is unquestionably a federal power.” In the proposal, I would cover every aspect of immigration enforcement and make explicit that the states must stay their hand in order not to disrupt the preeminent federal government’s carefully crafted enforcement framework. Hell, I’d even promise to build a triple fence, complete with Obama’s moats and alligators, from San Diego to Miami.

The press would eat it up, proclaiming it as Obama’s unflinching commitment to the enforcement component of a humane immigration policy. Led by Senators McCain and Graham, governors like Christie, and sundry former Bush officials, the GOP’s “comprehensive immigration reform” crowd would breathlessly jump on board. State politicians would praise the plan because the dirty little secret is that they like being able to blame the feds for the immigration mess — it’s handy to be able to say your hands are tied (notice that Arizona puts up no meaningful resistance in court to the premise that immigration enforcement is primarily the feds’ job). And while the folks at La Raza and MALDEF would squawk a bit for the cameras, they wouldn’t fight because they’d know exactly what Obama was doing.

Then, once the muscular, comprehensive enforcement framework was in place, and I’d taken my campaign swing/victory lap, I would do … nothing — no enforcement, nada. I would now have Congress and the federal courts telling the states to butt out, controlling illegal immigration is a plenary executive branch responsibility; I’d have current and former high-ranking DOJ officials explaining to the media that the law gives the executive branch unfettered prosecutorial discretion regarding what laws to enforce or not enforce; and, if pressed on the matter (yeah, right), I’d point to the comprehensive enforcement legislation I’d proudly signed as irrefutable proof of my commitment to vigorous enforcement. 

And with that all settled, it would be high time to bring people out of the shadows. After all, we are a nation of immigrants and there is no such thing as an illegal person … and there’s still plenty of time to register to vote — early and often!

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