The Federal Lawsuit Against the State of Arizona and Immigration Reform

After Eric Holder complained that the Arizona law allowing the police to determine the immigration status of people stopped for apparent violations of the law would lead to racial profiling even before he read the Arizona law, the Justice Department has filed a lawsuit against the Arizona law.  The lawsuit makes no racial profiling claim, but instead insists that Arizona is infringing on the powers of the federal government.  In fact, the Arizona law is much more concerned than is federal law about avoiding racial profiling and in general about the rights of legal immigrants to go about their business without interference.  What is more, the Arizona law does not allow the Arizona police to make the final determination on the immigration status of those they suspect of having violated immigration laws and it does not allow them to transport such people across any borders.  Arizona police simply turn such suspects over to the federal immigration authorities.  Those federal authorities can simply release the people turned over to them, if they decide to do so.

So, if the Arizona law cannot on the face of it be held to cause undue racial profiling and the Arizona authorities will not be interfering with the federal authorities decision-making powers on immigration matters or on deportations, why is the Justice Department filing this lawsuit?  There are two principal reasons:

• As is frequently noted, the Democrats are making a play for the Hispanic vote in the upcoming elections, which otherwise appear to be a catastrophe for them.
• Present policy is for the Democrat administration not to enforce the immigration laws and the Arizona law will document the fact that the federal government is not doing so and does not want to do so.

The Arizona law was passed exactly for the reason that the federal government was not enforcing the federal law on illegal immigrants.  It was intended to put the federal government in the very awkward position of having people presented to them who had no evidence of citizenship or legal immigration and seeing what the federal government would do with them.  If the federal government simply turns them loose, the state of Arizona will be able to generate data showing how many probable illegal immigrants the federal authorities turned loose.

Eric Holder has threatened that if any future case for racial profiling can be made as the Arizona law is put into use, if it escapes the present attempted federal injunction against it, Arizona will face another federal lawsuit.  This would hold Arizona to a much higher standard than the federal government itself is held to.  Federal courts have ruled that the federal government itself is not restrained from racial profiling and federal law itself is not very concerned with a careful avoidance of restraint upon the right of legal immigrants to go about their business.  The Arizona law is a model law compared to that of federal law.  If the Democrat administration were not hypocritical, it would be acting to change federal law to make it more concerned with human rights and making it more like the Arizona law.  Any future federal lawsuit based on racial profiling will subject the federal law to an unfavorable comparison to the Arizona law and may be therefore ill-advised.

So overall, the Arizona law affronts the Democrat federal administration in numerous ways:

• It pushes the federal government to enforce the federal laws when it does not want to, so it will earn more Hispanic votes in future elections.
• It documents any effort on the federal government not to enforce the immigration laws.
• It points to the hypocrisy of the federal government on racial profiling.
• It points to the long on-going failure of the federal government to create enforceable immigration laws.
• It makes it more apparent that the present large numbers of illegal immigrants are in a very undesirable state of vulnerability which could be eliminated by more rational federal laws.

We should have secure borders and we should have a very liberal immigration law which allows both more permanent residents and guest workers who intend to return to their native country in a short while or a few years.  The securing of our borders is needed to reduce the terrorism threat and to weed out criminals.  It is a fundamental duty of the federal government to provide secure borders.  On the other hand, just as we should favor free trade in general, guest workers and immigrants intending to establish resident status are simply fulfilling the right of people to pursue their happiness.  The fact that we have a welfare state and some under-educated guest workers and immigrants will put strains on it, is an awkward fact, but one which is simply a consequence of the immoral welfare state.  It is one of very many ways in which the welfare state infringes upon the rights of man, in this case to engage in free trade, to earn a living, and by redistributing income from working citizens to new immigrants and guest workers.

The fact that we prohibit the use of marijuana and other drugs has generated much of the crime that many associate with the illegal immigrants.  I am undecided about the wisdom of making many of the drugs illegal, but it is very clear to me that there is no sound argument for making marijuana illegal.  The crime due to illegal drugs would at least be diminished by legalizing marijuana.

Most people who have evaluated the work ethic of the great majority of the illegal immigrants in the U.S. have found it to be worthy of praise.  For my part, I have observed crews performing lawn care tasks which are very hardworking.  I have also observed a crew replacing sidewalks in front of my lab and doing a very capable job of it.  I do not know for certain that the crew members were illegal immigrants, but I suspect that many were.  I also have a nephew in Oklahoma who performs extensive home repair work and hires crews headed by resident Hispanic Americans.  He suspects many of the members of the crews brought in are illegal immigrants.  He has nothing but praise for their work effort, the quality of the work they do, and their initiative.  An immigration policy which allows such workers a legal status is to everyone's advantage, save perhaps a few lazy and under-educated Americans who cannot compete in the workplace, but want a free ride.

Our present immigration policy makes it very difficult for Hispanics to enter the U.S. legally.  First, the quotas are set at quite low levels.  Second, the fees to be paid may seem reasonable to Americans who are among the wealthiest people in the world, but they are very high for the under-educated and impoverished people of the countries in Latin America to our south.  The only way many such people can come up with so much money is to first enter the U.S. illegally and find work here.

The argument is often made that we should not encourage those who break U.S. laws by entering the U.S. illegally.  The argument is not without some justification.  However, we presently have immigration laws which are widely recognized as being irrational and when desperate people break irrational laws, that is morally difficult for someone who values human life to condemn.  The idea that it is immoral to break the law rests upon the assumption that the law is consistent with the protection of the rights of the individual.  When the law is not properly dedicated to that purpose, it becomes immoral.  Many, many laws in the U.S. are presently highly immoral.  There are fundamental moral reasons why the federal government is constitutionally constrained to have very few powers and those few powers were carefully enumerated.  The fact that the federal government has long ignored the severe limitations on government powers has long since removed the moral obligation of people to obey many of the federal laws.

Returning specifically to the immigration laws, it should be noted that laws which are unenforced or which are very selectively enforced, also lose their justification for calling upon a moral obligation to obey them.  The immigration laws have been ignored and unenforced by many federal administrations now, both Republican and Democrat.  The moral argument that we should not grant any form of amnesty to illegal immigrants rests upon our wish that our laws deserved to be obeyed.  It is based on the idea that our laws are rational and moral.  But when laws are not rational and moral, as many of our laws no longer are, then this prejudice in favor of the law must be set aside until we have addressed the real problem.  That real problem is that we are obligated to change the law to one that is rational and moral.  Such a program will recognize immigrants and guest workers as productive people who are making a positive contribution to our free markets and our society.

For these reasons, we should create new immigration laws after the corrupt power of the present Obama administration is constrained by a Congress with at least the House or the Senate under Republican control.  An amnesty program which imposes little in costs and inconvenience for those presently working as illegal immigrants in the U.S. should be put in place.  This program should require that illegal workers obtain recommendations from American citizens and legal residents as to their character and work ethic.  The borders should be secured with a greater effort there, but mostly the reform will be to allow much easier legal paths to permanent residence and to guest worker status.  With a rational and moral immigration and guest worker program in place, then we will be justified in believing that our laws should be obeyed.  This will require that we finally have a comprehensive reform of immigration laws, which we have not had in conjunction with previous amnesties.  Then we must evenly and equally enforce the new rational and moral law.