In enjoining Arizona’s landmark immigration law, U.S. District Judge Susan Bolton maintains the Obama administration’s carefully cultivated fiction: that what concerns the White House regarding S.B. 1070 is its effect on legal, rather than illegal, aliens. Almost nowhere in the government’s briefs or the judge’s ruling is the arrest and detention of illegal aliens addressed. This fiction is transparent, however. The real threat posed by S.B. 1070 was that it would disrupt the de facto amnesty that the executive branch has accorded to the vast majority of illegal aliens. It would start to implement congressional mandates and the public will that the immigration laws be enforced. For that reason, it had to be stopped.
So determined was Judge Bolton to follow the Obama administration’s political strategy regarding the law’s putative impact on legal immigrants that she exploited a drafting error in the law that Arizona had already acknowledged and repudiated. S.B. 1070 authorizes local law-enforcement officers to check the immigration status of individuals they have lawfully stopped, if they have reasonable suspicion that the individual is in the country illegally, and if the inquiry into immigration status is practicable. S.B. 1070 also required that “any person who is arrested shall have the person’s immigration status determined before the person is released.” Arizona stated in its brief and testified in court that the legislative intent behind that sentence regarding arrestees was that only people for whom there is already reasonable suspicion that they are in the country illegally would have their immigration status checked after arrest. The section does not apply to every arrestee.
Judge Bolton rejected that testimony, however, in order to buttress the White House claim that large numbers of legal aliens would be subject to immigration inquiries if S.B. 1070 went into effect. As the Justice Department portrayed it, and as Judge Bolton affirmed, massive categories of legal aliens by definition do not have proof of their legal status with them. If those legal aliens are now to be queried about their immigration status following every arrest in Arizona, they will be subject to undue harassment, the federal government and the judge concluded.
The only lawful aliens to whom the judge could point who would not necessarily have proof of status “readily available” to them, however (neither the federal government nor the judge asserted that proof of status was “unavailable” to such individuals), were visitors from visa-waiver countries, asylum applicants who have not yet received a green card, victims of certain enumerated crimes such as trafficking who are assisting law enforcement, and women who have petitioned for relief under the Violence Against Women Act. But presumably the lawful status of such aliens would be known to the federal government. If an Arizona officer inquired into those aliens’ immigration status, ICE would tell the officer that the person is authorized to be in the country, ending the investigation.
Furthermore, the number of such individuals who would also be in a position to raise an officer’s reasonable suspicion that they were in the country illegally is extremely small. In a petition for injunctive relief, a judge must balance the equities in favor of both parties. The interest of Arizona, where 500,000 illegal aliens reside, in restoring the rule of law should be weighed against the interest of those small numbers of legal aliens or aliens whose status is in abeyance and who might be questioned regarding their immigration status because they have raised a reasonable suspicion that they are in the country illegally.
Judge Bolton’s ruling regarding S.B. 1070’s provision on the possession of immigration documents verges on bad faith. S.B. 1070 adopts virtually verbatim a federal law requiring lawful aliens to carry their immigration papers with them; the Arizona version merely lessens the federal penalties regarding the amount of the fine and possible jail time for violation of the federal document requirement. As the judge notes, federal registration power is exclusive; Congress’s registration scheme may not be altered by the states. But nothing in S.B. 1070 changes the rules for registration; the Arizona law merely confirms those rules in state law. Judge Bolton alleges that the Arizona provision “alters the penalties” in the federal law, without disclosing that the Arizona law lowers them. She concludes without the slightest trace of argument that the Arizona document provision “stands as an obstacle to the uniform federal registration scheme and is therefore impermissible.”
The only factually plausible objection to S.B. 1070’s document requirement and to the provision authorizing inquiries into an alien’s status is that Arizona may penalize someone for being in the country illegally whom the federal government intends to ignore. It is the effect of the law on illegal aliens, not on legal ones, that has most upset the Obama administration and illegal-alien advocates (the Bush administration would probably have reacted similarly). A large reason why S.B. 1070’s impact on illegal aliens was so carefully kept offstage in the federal government’s brief and the judge’s ruling is that Congress has repeatedly expressed its intention that local governments cooperate with the federal government in the “apprehension, detention or removal or [illegal] aliens,” as a 1996 federal law declares. The very immigration-information clearinghouse that Judge Bolton worries would be overtaxed by S.B. 1070 was created to effectuate Congress’s mandate that the federal and local governments share information regarding illegal aliens. As the Senate declared in 1996 when banning sanctuary laws (a ban whose disregard in Arizona led to S.B. 1070): “illegal aliens do not have a right to remain in the U.S. undetected and apprehended.” If in fact that information clearinghouse becomes burdened with “too many” inquiries from Arizona, it’s for the executive branch to seek greater funding. Congress never said: We want information sharing, but only up to a point. Moreover, many of Arizona’s own law-enforcement officers are capable of using the federal immigration database without needing to go through federal channels.
The vast majority of the public supports immigration enforcement. S.B. 1070 promised to make such enforcement a reality. For the moment, the public will has been defeated, which is why S.B. 1070’s effect on illegal immigration was the one aspect of the law that neither the Obama administration or Judge Bolton dared to address.
– Heather Mac Donald is a contributing editor to City Journal and a co-author of The Immigration Solution.