The Obama Administration’s legal challenge to Arizona’s S.B. 1070 immigration-related enforcement law is misguided and runs counter to the rule of law. That’s what panelists at a recent Heritage Foundation symposium concluded.
Experts addressed the grounds on which the federal lawsuits against this state have proceeded. The think tank’s event featured a keynote address by Cochise County Sheriff Larry Dever, who has been outspoken in defense of Arizona’s law. Other participants included Kris Kobach, a University of Missouri-Kansas City law professor, former Justice Department official and central figure in drafting Arizona’s S.B. 1070.
Heritage’s own senior legal fellows Hans von Spakovsky and Charles Stimson rounded out the panel. Both served in the administration of President George W. Bush, Spakovsky at the Justice Department in the Civil Rights Division, at Defense. He moderated the event.
Larry Dever spoke as a local law enforcement official whose county sits along the U.S.-Mexican border. He has seen the affect of illegal immigration on the people of his county and state.
The Obama Administration has claimed that the Southern border is as much under control as it ever has been. “I don’t quibble with that,” Dever said, but then cited several magazine articles from the 1980s to the present whose headlines proclaimed massive illegal breaching of the border.
Dever noted that the volume of human trafficking across his county has continued to rise. So has the amount of smuggled drugs and contraband. So has the reign of terror that ranchers live with, under daily threat from illegal aliens and smugglers. So has the number of dead bodies in the desert.
And while Washington officials claim one in three illegal immigrants is caught, he said that Border Patrolmen on the Arizona line say they really stop only one in ten illegals.
Sheriff Dever has become involved in the litigation the Obama Justice Department has brought against Arizona.
Kobach explained how the Arizona law is carefully crafted to parallel federal immigration statutes. He noted that, right now, numerous crimes are addressed concurrently in both state and federal law. These range from narcotics to bank robbery. This is hardly something new, he said.
The Arizona law reflects the same language as the wording in federal immigration law. The state law doesn’t create its own immigration policy. That makes the administration’s legal challenge all the more specious. Its arguments parrot those the ACLU, the National Council of La Raza and similar activist groups make whenever a state or locality tries to enact a remedy to immigration-related problems that arise in their community.
Kobach said the state expected a legal challenge, only from the American Civil Liberties Union lawyers working at the leftist organization, “not the ones in the Justice Department.”
While the administration based its legal argument on federal pre-emption where immigration is concerned, Mr. Kobach explained that neither of the two legal types of pre-emption apply here. Neither implied pre-emption nor express pre-emption exists concerning state and local assistance in immigration enforcement.
It would be hard for a court to conclude that state laws that parallel federal provisions or that act in concert with federal law on the same subject have been pre-empted, Kobach said. Federal laws like the one establishing the 287(g) program explicitly invite state and local involvement enforcing immigration laws.
Saying that Arizona should ultimately win the legal battle, Kobach cited the fact that the Supreme Court and several appellate courts have treaded lightly in cases involving federal pre-emption. The courts have taken a cautionary stance when pre-emption is claimed, because of the slippery slope that easy findings of pre-emption would create.
Spakovsky pointed out how Arizona’s law explicitly prohibits racial profiling. He noted that the racial-profiling prohibitions in S.B. 1070 are tougher than federal racial-profiling guidelines that apply to federal law enforcement officers.
Federal guidelines allow the consideration of racial or ethnic factors if those elements are relevant to the specific situation an officer faces. By contrast, S.B. 1070 requires that immigration status checks can occur only if “reasonable suspicion” of illegal status arises after stopping someone for some other offense. The state law practically bars policemen from considering race or ethnicity in the original grounds for stopping someone. Only secondarily could the suspect’s race or ethnicity be taken into account with regard to his immigration status.
Both Kobach and Spakovsky took note of the fact Obama officials, including the President himself and the attorney general, charged that widespread discrimination and racial profiling would happen under the Arizona law. But both panelists found it curious that the government’s lawsuit against this Arizona law didn’t raise this argument. The Obama Administration’s lawsuit seems clearly to be the product of political motivation and is at odds with the rule of law.