Fifteen Eighty Four

On Thursday, July 29, 2010, the tough new Arizona immigration law is scheduled to take effect.  The Obama Administration filed a lawsuit against the State of Arizona on July 22 asserting that the state has overstepped its authority in cracking down on illegal immigration and that the Arizona law was blatantly unconstitutional.  In fact, it is some of the suit’s central arguments that represent an overstepping of federal authority.

The arguments the Department of Justice makes in U.S. v Brewer are not supported by the text of the U.S. Constitution, do not jibe with the reality of U.S. immigration policy, and are historically inaccurate.  In a suit, to be heard in the U.S. District Court in Phoenix on July 22, the Department of Justice attorneys repeatedly assert the “preeminent authority” of the federal government to regulate immigration matters and that this authority is “constitutionally reserved to the federal government.” Arizona, or any state for that matter, my not “establish its own immigration policies.”

As far as constitutional support for the notion that immigration is exclusively a federal power, the U.S. Constitution only states in Article I, Section 8 that Congress may “establish uniform rules of naturalization.”  That very narrow phrase hardly covers the vast array of immigration activities undertaken by the federal government today, including but not limited to:  the admission and regulation of temporary workers and tourists; the granting of permanent residency status (a green card) to close relatives of U.S. citizens and lawful permanent residents; and the temporary admission of foreign sports stars and entertainers into the U.S.

The Department of Justice also suggests that even if the constitutional text cannot stretch to cover all aspects of immigration policy managed by the federal government, surely the implications of immigration policy which can impinge on the “foreign policy and national security interests” of our county justify exclusive federal control over this policy area.  While it is certainly true that some aspects of immigration policy touch upon foreign policy and national security, not all aspects of our immigration system do.  It is difficult to ascertain the foreign policy or national security implications of the U.S. running a lottery that gives away green cards based on no logic beyond random chance, or the foreign policy and national security implications of reuniting spouses and minor children with their U.S. citizen or lawful permanent resident petitioners through family visas.  In reality, only limited aspects of immigration policy actually fall under the rubric of national security or foreign policy.

Finally, the Department of Justice’s assertion in its brief that control over immigration policy is “the exclusive province of the federal government” is historically inaccurate.  For better or worse, the colonies before the Revolutionary War and the states in the antebellum period, were in charge of running immigration policy rather than the federal government.  Colonies and states created and enforced qualitative restrictions on immigrants via policies to exclude alleged criminals, paupers, and the diseased.  To the extent that the federal government operated immigration policy in this period, it was a replication of state policies and practices.  More recently, the federal government itself has invited state participation in administering immigration policy via what are known as “287(g)” programs in which the Department of Homeland Security and state governments enter into agreements to cooperatively and jointly enforce immigration laws.

Critics of the Arizona law are right to be concerned about the deleterious impacts of the law on the ability of local law enforcement to effectively serve and protect their communities in light of their new mandate to also enforce immigration laws.  Minority communities also have good reason to be concerned about the rise of racial profiling and harassment of foreign looking and sounding persons.  However, the legal tack undertaken by the Justice Department’s case against Arizona ultimately undermines its overall objective of overturning the Arizona law, and improperly crosses borders of its own.