The Corner

Response to Linda Chavez

I’m sorry to find my friend Linda Chavez inferring a duplicitous motive from nothing more than my attempt to describe a statute to readers by pointing to the language pertinent to the point I was trying to make. (She ascribed a similar motive to Rich, here, and his response is here.) As I observed in the column to which Linda refers, Obama era statutes sometimes run into the thousands of pages, so if we’re going to have to quote them in toto, there isn’t going to be room for much else. Anyhow, I usually quote only parts of statutes that are relevant to what I am discussing but try to link to the full statute so readers can peruse it for themselves. I followed that practice with the Arizona immigration law, I didn’t try to hide the ball, and nothing Linda writes convinces me that I did hide it, even inadvertently.

Linda does something else that’s odd. First, she admonishes that “words matter” in conservative jurisprudence, and thus that we must deal with the words lawmakers use rather than pretextually divine legislative intent to avoid the meaning of those words. But having stated that admirable premise, she proceeds to construe “reasonable suspicion” not according to the rich jurisprudence defining that term objectively but by … divining legislative intent. As she sees it, by tacking on an eleventh hour caveat that officials may not consider race, color, or national origin “solely” in implementing the Florida Arizona law, lawmakers were somehow signaling that (a) “reasonable suspicion” does not really mean what the cases say it means, and (b) race, color, or national origin should be the dominant factor in implementing the law. Translation: when Florida legislators said “reasonable suspicion” they really meant “unreasonable suspicion.”

Linda is actually advancing progressive notions under the cloak of conservative rhetoric. “We conservatives can’t have it both ways,” she says, “either we’re for race-neutral justice or we’re not.” That turns “race-neutral justice” into a phrase as vaporously promiscuous as “social justice.” The conservative case is for common sense not sloganeering. “Race-neutral justice” is not an abstract ideal divorced from all factual context. We are for race-neutral justice when considerations of race have no proper place in the matter at hand. But I can’t imagine that Linda would prevent a prosecutor in a mafia case from proving that “membership” in a Cosa Nostra “family” requires Italian heritage. And based on our many conversations about national security, I’m betting she does not support purging terms like “jihadist” and “Islamist terror” in favor of “violent extremist” and “man-caused disaster” on the rationale that our commitment to “race-neutral justice” requires us to ignore the ideology that inspires modern terrorism.

The severe economic, social and criminal problem Arizonans are dealing with is illegal immigration from Mexico. If you say our law must be “race-neutral” in dealing with a problem in which race (or ethnicity/natural-origin) is unavoidably central, that is tantamount to saying the law cannot deal with the problem. That’s ludicrous. It would mean we must either be vigilantes or resign ourselves to suicide.

Challenges are what they are. They don’t organize themselves around our pieties. If a problem has a race/ethnicity/national-origin element, the solution has to account for it. To be sure, this will cause inconvenience and suspicion to befall some innocent people, but that is a fact of life in dealing with a problem of this nature. (It has, for example, been the law of the United States for over 200 years that, in a declared war, nationals of the enemy state who are present in our country may be detained. We have never been “race-neutral” in this regard, nor would it make any sense to be.) The Arizona statute attempts to mitigate the inconvenience and suspicion by prescribing forms of identification that create a legal presumption of lawful presence in the United States — notwithstanding that there is a robust document fraud market and, therefore, we know some will benefit from the presumption undeservedly. Nothing’s perfect, but the statute is a good-faith effort to draw sensible lines.

Linda’s meandering on “reasonable suspicion” obscures the fact that the Arizona statute is more protective of immigrants than is federal law. “Reasonable suspicion” is a detention standard, not an inquiry standard. As a matter of constitutional law, “reasonable suspicion” is irrelevant unless the contact between the state and the individual amounts to what Fourth Amendment jurisprudence regards as a seizure – i.e., interference with the individual’s freedom to leave the scene. As a matter of federal law, it has nothing to do with the mere asking of questions.

It is thus curious for Linda to take offense at Arizona’s requiring “reasonable suspicion” before permitting inquiry into the lawfulness of a person’s presence in the United States. She would impose the more onerous standard of “probable cause.” Yet, as Rich pointed out yesterday, in Muehler v. Mena (2005), the Supreme Court – in a unanimous opinion written by Chief Justice Rehnquist, a rather conservative justice – reaffirmed that “mere police questioning does not constitute a seizure,” and consequently that Fourth Amendment detention standards are not implicated by such questioning. Rehnquist elaborated (quoting Florida v. Bostick (1991)) that “even when officers have no basis for suspecting an individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search his or her luggage.” (Emphasis added.) Drawing on these principles, the Court sharply rejected the claim that the Fourth Amendment provided any protection against merely being questioned: “[T]he officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status.” (Emphasis added.) And to repeat, Linda’s wants probable cause. That is, she is making a demand even more extravagant than the reasonable suspicion claim the Supreme Court rejected in Mena.

In striking contrast, as I discussed yesterday, the Arizona law requires both that the initial contact between the state and the person be “lawful” and that, before the state may pursue the question of the person’s lawful presence in the U.S., the state must have reasonable suspicion that the person is here illegally. Unlike federal law, where the state could just proceed to ask questions about immigration status, Arizona now requires the state first to have specific, articulable grounds for suspecting unlawful presence before inquiring. It is more indulgent of the alien’s privacy interests than federal law.

Bottom line: Linda would convert “race-neutral justice” from a commonsense principle to an indiscriminate cudgel that would render law impotent against societal problems that are inextricably intertwined with race, ethnicity, and national origin. She would further bring mere questioning by the state or its police under the ambit of the Fourth Amendment (which the Supreme Court has properly resisted doing) and would create from whole cloth a new constitutional right to be shielded from any questioning unless the state has not just reasonable suspicion but probable cause that a crime has been or is being committed. Not even the Warren Court was that ambitious.

Finally, Linda makes the unassailable point that the new law does nothing to secure the border. I agree – I argued that Arizona was acting because the federal government had failed to act. Linda further notes that illegal immigration and crime in general are down, but that hardly means Arizonans don’t have a severe problem – kidnapping, a staple of Mexico’s drug wars, is now so rampant in Phoenix that lawyers are advertising themselves as specialists in kidnapping defense. In any event, my aims were to defend the lawfulness of Arizona’s action and to refute the spurious charge that to promote compliance with the immigration laws is to engage in racism. Whether the law will work as a matter of policy remains to be seen. There are indications that it is working already, but there is also – as I flagged yesterday with the help of Bill West – reason to believe the law could be a non-event: ineffective in cases of questioning prompted by suspicion of minor law violations and unnecessary in cases of serious crime.

I am not opposed to immigration, I don’t favor law-enforcement that devotes disproportionate attention to illegal immigration, and, like Linda, I believe we need an immigration system that encourages sufficient, lawful immigration to foster economic growth. But I also think citizens have a right to discourage illegal activity – in fact, it seems absurd to me that one should even feel the need to say that.

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