The Obama administration’s challenge to the Arizona immigration statute SB 1070 is not about its popularity, or whether the statute is wise or unwise policy. Legislatures are permitted to enact laws thought unpopular or unwise by others. And as Chief Justice Roberts observed, and the administration’s lawyer agreed, the challenge is also not in any way about civil rights or racial profiling.

The challenge to SB 1070 before the Supreme Court is over the narrow question of whether that statute enacted by the Arizona Legislature conflicts with federal immigration statutes enacted by the United States Congress. Since last Wednesday’s oral argument at the Supreme Court, supporters of the Arizona statute are increasingly hopeful that the high court will uphold most if not all of SB 1070, and its opponents correspondingly resigned to that result.

SB 1070 requires state and local law enforcement to verify the immigration status of anyone legally stopped if there is also “reasonable suspicion” of unlawful status, and authorizes arrest without warrant upon “probable cause” to believe that a public offense has been committed that makes a non-citizen removable. Those provisions are entirely consistent with provisions in the federal immigration law protecting the ability of state and local officers to communicate with federal immigration officers to ascertain someone’s immigration status, and which mandate that the federal government “shall respond” to an inquiry from state or local government seeking to verify or ascertain immigration status of any individual for any lawful purpose.

SB 1070 criminalizes unlawful presence of non-citizens without legal documentation. But federal immigration law already criminalizes failure by non-citizens to register with the federal government and “at all times carry with him and have in his personal possession” documentary evidence of such registration. So no conflict with federal law there.

Federal law punishes employers for hiring persons not lawfully in the U.S. Arizona’s statute prohibits a person not lawfully in the U.S. from seeking work and makes it a crime. Is that a conflict, or an acceptance by Arizona of the invitation from Congress “to participate in the process of enforcing federal immigration laws?” If the high court wants to “balance” its decision on SB 1070, this part of SB 1070 is the most likely to be found in conflict with federal law, though that conflict is certainly debatable and unclear.

At the root of the national debate over immigration is the unwillingness of elected officials of both parties, including President Obama, to decide whether the U.S. should have open borders with no numerical limit on immigration, or whether we should enforce an annual numerical limit on immigration to the U.S. as enacted by Congress. It’s a simple question, no limits or limits?

They don’t want to repeal the numerical limit and declare the borders open because that would be unpopular. But they also don’t want to enforce the numerical limit enacted by Congress because that would require actually removing people from the U.S. who have entered in violation of the legal limit, and that could cost them votes and political support, too.

So we end up with the current illogical policy of advocating a legal limit but refusing to actually enforce that limit against anyone who hasn’t been convicted of a serious crime and who isn’t a national security threat. Arizona, with 370 miles of international border with Mexico, has been left in the lurch by that incoherent policy.

Arizona is believed to have an illegal population of 400,000 out of 6.4 million total residents, which has triggered an on-going financial crisis over the increased costs for public education, emergency health care, and law enforcement and incarceration. Janet Napolitano, now Homeland Security Secretary in the Obama administration, was Arizona’s governor back in 2005 when she declared an immigration emergency in the state and complained that, “The federal government has failed to secure our border, and the health and safety of all Arizonans is threatened daily by violent gangs, coyotes and other dangerous criminals.”

Whether you think SB 1070 is good policy or not, everyone should understand why the Arizona Legislature enacted it, why it continues to be supported in Arizona and other states affected by illegal immigration, and why the Supreme Court is likely to uphold it.

• Jan Ting is a professor of law at Temple University’s Beasley School of Law and a former assistant commissioner for Refugees, Asylum and Parole, Immigration and Naturalization Service, U.S. Department of Justice. Reach Ting at janting@temple.edu.

(2) comments

Chet
Chet

SB1070 is a symptom of a racist immigration policy and it's being pushed by racists and the private prison industry, who want to have more people to lock up so they can bill the taxpayers of Arizona more money.

Instead of locking up the CEO's of corporations that hire immigrants, meaning all big agriculture companies, we give the CEO's of other corporations even more money to lock up the guy who picks tomatoes for the Big Ag guys.

Racism isn't just un-Christian, it's expensive.

Brittanicus
Brittanicus


We have one way in returning the power to the American people, is to retire the majority of Democrats, Liberals and Republican politicians, and give that influence to the Constitutional TEA PARTY leadership. Under Obama we have seen the U.S. deficit rising to an almost fanatical 16 trillion dollars. In Sen. Harry Reid’s party no move towards a balanced budget. Then both parties have deliberately ignored the astronomical $113 billion dollars a year, pander to the 20 plus million illegal migrants and immigrants already settled here. Our only real chance to stop the illegal invaders is adopting more Tea Party Senators and Representatives. Millions of demoralized Americans of different racial make-ups, religions and political parties have joined the Tea Party that represents all citizens, permanent residents whether of Hispanic, Latino, European, and Asian, Pacific Rim or any part of the world’s population who came here legally.

Beginning with Arizona v. the justice Department who revolted against the high court’s unfunded mandates, that STATES must give health care, an education and welfare programs to anybody who can slither past our fences or just lie to an agent, when they alighting from a jet plane from another country. Other than Sanctuary states, the rest are waiting for the outcome in June by SCOTUS. Patiently waiting is Alabama, Georgia, Indiana, South Carolina and the majority of other states to at least have some confirmation, whether they can advance a policing policy to check a person’s eligibility to be in the United States?

Senator Marco Rubio has his own plan for the Dream Act, other than the very incendiary law that Democrats have in mind. For any realistic chance of the Dream Act gaining passage in Congress, certain provisions must be in effect. The central government has to enact a nationwide mandatory E-Verify program, that Chain Migration must be rescinded from immigration law, that only children below the age of ten would be considered and that all recipients to obtain a path to citizenship, must depart the country and apply for a entry at an Embassy, as every other patient immigrant must do. A larger majority of the Tea Party members would also insist that the Birthright Citizenship law be amended, so no pregnant illegal alien mother or parents could take advantage any more with their child/children getting instant citizenship. That no baby/infant should become a taxpayer’s burden, unless one parent is a U.S. citizen. Over the years this law has become mutated, and should not be a foothold, for every illegal migrant or immigrant who smuggles themselves into America to gain admittance to welfare and public assistance. Our own pregnant females suffer a large disadvantage by the hospital clogged by illegal alien Mothers, whereas citizens and residents must pay maternity fees, while others get a free uncompensated ride. These programs should only be available to citizens, naturalized citizens and green card holders.

ALL WE ARE DOING BY GIVING ASSISTANCE TO FOREIGNERS WHICH IS ACHIEVING MORE POVERTY FOR OUR PEOPLE; OUR SICK, MENTALLY ILL, OUR HOMELESS, OUR POOR AND EVEN OUR TROOPS COMING HOME SHOULD BE OUR TOP PRIORITY?

That the farming and agricultural commerce have an obligation to pay the benefits for their labor and not the state’s taxpayers. There will no importation of migrant poverty anymore, by cutting off access to welfare, food stamps, and section 8 housing programs. Taxpayer doesn’t need or should we accept any new low skilled workers, instead we must necessitate in supplying our own citizens with more occupational programs. Further we must safeguard our voting system which has been compromised by the far left, its Liberal associates, Democrats and groups like ACORN that became a vital factor of a growing number of state requiring official ID to vote. Illegal aliens are voting and will again in local, state and federal elections and this dishonesty must be ended. Another set of regulations to amend, would be a careful examination of the current visa system allowing around a million legal immigrants annually into the U.S. No further violation can be tolerated from businesses and we should only permit the highest intelligence in engineering, the sciences, mathematicians and computer technology professionals to immigrate.

Illegal immigration must become a thing of the past by securing our border fences. Business that intentionally ignores E-Verify should face harsh sanctions, including prison. Elected officials, who allow such provisions as Sanctuary City ordinances, should be punished and government legislators should sever funds to these perpetrators. All federal and state legislators, governors, majors, police chiefs should be put on notice, that voters will unseat them, specially the Tea Party members. Any illegal alien invaders of this sovereign country, should be prosecuted as a Felony, not a civil infraction, with ID theft or Voter Fraud should be mandatory prison sentence, with no exceptions.

America is bleeding badly from years of neglect by both political parties and pampering of foreign nationals cannot be accepted any more as the norm. Internal enforcement is more urgent than ever before, because of supporting illegal aliens is skyrocketing and taxpayers are on the hook. Illegal aliens have also found a way, to obtain $4.6 billion dollars annually by defrauding the IRS and the taxpayers, using non-existent children tax credits. Elections are no longer safe as Democrats and their less honest followers are participating in voter fraud. We either need a national ID card or that all voters must possess a government picture ID for proof of who they are?

If you cherish your freedoms from the corruption in Washington that benefits all of us, we need a balanced tax system with no subsidies, a right to drill on the Peoples National land and sea for plentiful reservoirs of oil, natural gas to alleviate our out-of-control deficit. No more government bail outs for the friends of the White house. Throw out all the profiteering lawmakers and by cleaning house, put recognizable TEA PARTY leaders in their place. Voters need to demand from Congress, specifically from GOP House speaker, John Boehner of Ohio and Dave Camp of Michigan, as the Chairman of the powerful Ways and Means Committee to stop blocking the 50-state E-Verify bill. Call the central switchboard at 202-224-3121 Washington, DC. For further information on this crisis subject, check with NumbersUSA website, where even Congress consults on immigration matters.

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