Razing Arizona

Won't you let me in, immigration man?
I won't toe your line today
I can't see it anyway
--Crosby, Stills, Nash & Young

A last minute ruling by a US District Court judge struck down key provisions of a pending Arizona statute designed to tighten monitoring of immigration status of people in the state.

Arizona argued that the legislation was necessary because of the federal government's failure to adequately enforce US laws to keep illegal immigrants out of the state. The state contended, with reasonable evidence to support its claim, that outsized and increasing proportions of in-state crimes are being committed by illegal immigrants. To increase the safety of its legal residents, Arizona sought more control over the detection process.

The federal government went to court to block enforcement of this law using two primary arguments. One was that the the Arizona statute would violate the liberty of legal residents who, under the new law, might be held by police authorities while their legal status is being determined. The other contest was that immigration law and enforcement is the domain of the federal government, not the states.

The judge's ruling highlights two primary issues. One involves the tradeoff between freedom and safety. The judge stated that "Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully present aliens because their liberty will be restricted while their status is checked."

Why the judge, a Clinton appointee, stopped at 'lawfully present aliens' and failed to include 'legal US citizens' is surprising to me, because any increase law enforcement aimed at promoting safety is likely to compromise freedom for the citizenry at large. That said, this ruling seems wholly consistent with Constitutional intent and the Bill of Rights--particularly the Fourth Amendment.

The philosophical tenet here is this: when faced with a matter that involves choosing between greater freedom and greater safety, the alternative that favors greater freedom will be chosen. Patrick Henry's infamous 'Give me liberty or give me death' remark captures this tenet well.

While wonderfully applied by the judge in this particular instance, one has to wonder why it isn't applied more consistently across the legal spectrum. Individual liberty is compromised by a broad range of government activities ranging from the Patriot Act to social security initiatives.

It is easy to conclude that the judicial process mirrors the political process at large: be consistent with a position only when it is politically convenient.

The other issue in the Arizona ruling concerns states' rights. The judge ruled "Even though Arizona's interests may be consistent with those of the federal government, it is not in the public interest for Arizona to enforce preemptive laws."

Heading to the Constitution, the extent to which immigration issues, particularly those related to enforcement, are the province of the federal government is unclear to me. Article 1 Section 8 grants Congress the power to "establish an Uniform Rule of Naturalization."

If indeed this power includes authority for writing and enforcing immigation procedures, then it seems to me that the key words above are 'uniform rule'. The implication is that any immigration rules need to be a) effective, b) equally applied across the entire country. Right now, I believe Arizona has a good argument that the current rules enacted by the US government are not working in their state, either because the law itself is ineffective or because it is being ineffectively enforced by federal officials.

This bids the question of when are states properly justified to take a preemptive (using ruling judge's words above) legal action when a federal law is being ineffectively executed by the central power? One thing I am certain of is that the Founders did not intend on making the states overly dependent on the federal government to the extent that the states would lose the bulk of their sovereignty.

Unfortunately, legislative and judicial rulings continue to transfer more authority from states to the central government at the expense of the Tenth Amendment.