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Arizona is only taking existing law seriously

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POSTED: July 14, 2010 10:44 a.m.
The legal case against the Arizona immigration law is unassailable.
The Justice Department and the American Civil Liberties Union argue that the law impermissibly “conflicts with federal law and enforcement priorities,” in the words of the ACLU suit. And who can disagree? Clearly, Arizona’s priority is to enforce the nation’s immigration laws; the federal government’s priority is to ignore them as much as possible. Case closed.
In his recent immigration speech, President Barack Obama warned ominously of a “patchwork” of immigration laws arising as “states and localities go their own ways.” Oddly enough, sanctuary cities acting in open defiance of immigration laws have never notably been the object of his wrath. Who’s to judge the good-hearted people of Berkeley? There’s only one part of the dismaying patchwork that stirs Obama’s Cabinet to outrage and his attorney general to legal action — Arizona’s commitment to enforcement.
The legal fight between the federal government and Arizona will be a case of dueling insincere arguments. The federal government will pretend that it objects to Arizona supposedly creating a wholly new scheme of immigration regulation, when its real problem is that the state wants to take existing law too seriously.
Arizona will pretend that it is acting in keeping with long-standing federal intent, when its law never would have been necessary if the feds intended to enforce their own statutes. Instead, the federal government has adopted what the Justice Department calls — in a euphemism for the ages — “balanced administration of the immigration laws.”
The case against Arizona rests on “pre-emption,” the notion that federal law “occupies the field” on immigration and prevents states from passing their own regulations. In the context of the initial gusts of outrage at the Arizona law, this is a somewhat technical transgression. Couldn’t Eric Holder have nailed Arizona for its nascent Nazism?
Arizona has been here before. Pro-immigration groups sued over its workplace enforcement law passed in 2007. All the same arguments were mustered about federal pre-emption. A U.S. district-court judge (upheld by the appeals court) rejected them because the state law so closely tracked the federal law and didn’t contradict its stated purpose.
The drafters of the new law attempted to meet these same standards by directly drawing on federal statutes for its definition of immigration offenses. The courts have long upheld the right of states to make arrests for violations of federal immigration law, and the Supreme Court in a 1976 decision said federal immigration law didn’t intend “to preclude even harmonious state regulation.” Regardless, the courts will now decide.
The Obama administration hasn’t always been such a stickler for national uniformity. Last year, it reversed Bush-administration policy and stopped prosecuting violations of federal marijuana law by users and suppliers of medical marijuana in states that have legalized it. The upshot is that the direct violation of federal drug laws is acceptable at the state level, whereas the direct enforcement of federal immigration laws at the state level is not.
And so the battle is joined, with the federal government making the plea — please, whatever you do, let our immigration laws molder on the books.

Lowry is editor of the National Review.

 

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