“There Is No Arizona”*

I’m a committed believer in open borders and, failing that, of a robust guest worker program and something in the neighborhood of absolute amnesty for illegal immigrants.  Moreover, I’ve got no real affinity for what passes as the political Right in this country and generally have more hope for the Left in the long run (even though I don’t consider myself part of the American Left either).  So this is tough for me to say, but here goes: the reaction to the Arizona legislation has gone way overboard, and I have a difficult time understanding why Erik would view it as the “last straw” in terms of his willingness to consider himself aligned with the Right. 

Don’t get me wrong – I would not have supported the Arizona legislation, even in its modified form.  Indeed, I even think it’s quite possibly unconstitutional on grounds of federal preemption.  But that aside, I don’t really understand what makes this law draconian in a way that existing federal immigration laws do not (or at least could not if they were fully enforced). 

Now, the original version of the law, with its allowance that police officers could demand to see papers based on “any lawful contact” was a tremendous potential civil liberties problem that I would have found to be a violation of the Fourth Amendment on its face.  Indeed, the “papieren, bitte!” complaint about the law was far from hyperbolic.  But this problem has been removed, replaced with a restriction that police may ask for proof of status only upon a lawful stop, detention or arrest, and that race may not be a factor in a decision to ask for papers.** 

In other words, the law requires that a police officer have sufficient probable cause to have stopped, detained or arrested someone in the first place before they can ask to see papers, which presumably the police officer would demand in most instances anyhow.  Admittedly, the removal of race as a permissible factor in making a request is of little comfort since only the officer himself is ever going to know why he has come to a suspicion about a particular individual’s immigration status.  And I’ve little doubt that we will see some sort of an uptick in racial profiling as a motivation for traffic stops in the first place since police officers will have an very real opportunity to use traffic stops as a pretext for asking for a person’s papers in the first place. 

But these problems are hardly new and unique and for the most part I have a hard time seeing how this will increase racial profiling by a significant amount – for the most part, I assume that cops who are willing to engage in racial profiling in the first place don’t need an added incentive to do so. 

Yet despite these fixes, and despite its apparent popularity overall, the passionation opposition to this law continues essentially unabated.

Given that the law primarily winds up giving teeth to existing federal immigration law, it occurs to me that what this debate is ultimately about is the justice of existing federal immigration law.  The debate over Arizona, if it ever was, is no longer about civil liberties or racism and is increasingly about whether we need to change that federal immigration law.  Unfortunately, by using the Arizona law as a proxy for a discussion about changes to existing immigration law, we on the pro-open borders side of the debate are failing to have the courage of our convictions.  In the meantime, we are failing to acknowledge that the Arizona legislation is a response to a very real local problem – a local problem, by the way, that is the direct result of existing federal immigration restrictions. 

We have a nearly 2000-mile long border with Mexico, and the Arizona portion of that border is entirely man-made (ie, no natural barriers) and runs 350 miles.  The notion that such a border could ever be anything other than a sieve, no matter what the official legal restrictions, is folly, and it should come as no surprise that Arizona, with the largest man-made portion of the border, is where that sieve is most open.  But by having those restrictions nonetheless, we guarantee that instead of crossing the border over roads and highways, many immigrants seeking a better life for themselves will cross through all sorts of private property, inherently causing damage and anxiety in the process.  This is made worse by the fact that the illegals have virtually no legally enforceable rights during this trip (and, quite often, afterwards).  In short, the sort of illegal immigration that Arizona has to deal with is bad for all involved – and it is bad precisely because we have made the immigration illegal in the first place.

But that does not change the fact that Arizona has to deal with these problems.  And even if it wanted to, Arizona could not deal with them the way that would most mitigate them – Arizona cannot order the Border Patrol to not do what they’ve been hired to do, and it cannot declare its border with Mexico open to all.  What it can do, however, is try to do what the federal government lacks the resources and wherewithal to do – make it harder to live for a significant amount of time as an illegal immigrant in Arizona.

I strongly doubt that this legislation will meaningfully solve Arizona’s problem.  But it may well mitigate it a little bit, and I can understand the impulse to at least try to do that much. 

But when we are getting in a huff about Arizona’s immigration legislation, we are really getting in a huff about the idea of enforcing existing federal immigration legislation.  I do not relish the notion of defending the arbitrary enforcement of a bad law and attacking a good-faith attempt to enforce that bad law uniformly.  Doing so only supports that arbitrary enforcement while undermining attempts to eliminate or mitigate the underlying bad law. 

As revised, the Arizona law is far from a novel assault on civil liberties.  The underlying federal immigration law is, and the Arizona law ought only make us come to terms with that fact.  I agree with Erik that the modern Right is far too comfortable complaining about the tyranny of taxes while apologizing for direct forms of tyranny.  This, indeed, is one of the primary reasons I am on the whole more sympathetic to the Left than the Right.  But after its revision, there is no longer much reason to view the Arizona legislation as emblematic of that problem.

*Title inspired by a truly crappy early-00s country song.

**I do have a huge problem with the apparent nationwide popularity of this law even before it was fixed.  But that problem goes to a fairly standard libertarian complaint about democracy – the commitment to limited government, civil liberties, etc. turns out to be exceedingly shallow and self-interested in issue after issue.  People may, for instance, love the concept of free speech, but they often turn out to be all-too-willing to forgo that concept when someone is saying something that offends them.

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32 thoughts on ““There Is No Arizona”*

  1. But that problem goes to a fairly standard libertarian complaint about democracy – the commitment to limited government, civil liberties, etc. turns out to be exceedingly shallow and self-interested in issue after issue.

    Republicans and Democrats, working together, to finally provide everyone with a National ID card.

    For, presumably, The Children.

    This will be a lot easier when they just tattoo our foreheads.

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    • @Simon K,

      It is still a problem because of the lawful stop provision. If it only applied to people who have actually been arrested then that would greatly reduce the margin for abuse.

      It is still a terrible idea for AZ fiscally with the sue the police provision.

      And the immigration bill doesn’t create a national id card, not in name or stated intent at least. It attempts to make the social security card more fraud resistant at the time of hire,

      I do understand the concerns though, I’d just like to make sure that the actual story gets out as well as the slippery slope fear.

      And Jaybird, they won’t talk about the children, they will talk about something else to sell the bill. I think jobs and border security will be the most talked about.

      That said I can’t see an immigration bill working without a) allowing for more legal immigration, b) requiring better employment status verification.

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      • @ThatPirateGuy, Oh, its still a bad idea for Arizona and generally. I may be a bit hazy on what exactly a lawful stop is – presumably this means, for instance, a traffic stop? A traffic stop still requires probably cause as far as I know – ie. they need to believe you actually did a specific thing that was against the law, not just have “reasonable suspicion”. That is the cop has to believe the person stopped was speeding, ran a red light, or whatever. They’d have to show that the stop was lawful, or they’d have exceded their powers and a judge should throw the case out, right? So they can’t just hang out next to a stop sign and stop every car with a brown colored driver without risking their badge. If I’m right I think this is sufficient, although I may be wrong – not a lawyer and all that.

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        • @Simon K, “They’d have to show that the stop was lawful, or they’d have exceded their powers and a judge should throw the case out, right? ”

          Do they have to show that it’s lawful? If the burden is on the stopped person to demonstrate unlawfulness, that’s quite different, and might be virtually impossible. If you were stopped by the police, just how could you show that the stop was unlawful, unless they said some incredibly stupid things, and were recorded doing so.

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          • @Barry, I believe they have to tell you – the first thing the cop says when he stops you on the highway is “I’m stopping you because …”. If they don’t, and that fact comes up in court, and they can’t demonstrate that the had probable cause then their evidence is inadmissable, and if there’s evidence that they didn’t have probably cause at all, then they may be in trouble themselves. At least I think thats how it goes …

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  2. I’ve been blogging a lot about this at Attackerman, but my need to have everybody understand this trumps my pride in my own posts.

    Reasonable suspicion and probable cause are entirely distinct legal terms.

    There’s also the citizen lawsuit provision. No other law in the country allows a private citizen to sue a city if he thinks the police aren’t being aggressive enough in enforcing a particular law. This forces police to choose to pull over a suspected undocumented immigrant with a broken taillight instead of responding to a shots-fired call, because if they get caught leaving the immigrant they could get sued. (This problem actually gets exacerbated in the revisions, because cranks will now be able to call in anyone who looks like they’re renting an overcrowded apartment or violating another housing ordinance, and the police will have to go investigate everything that gets called in.)

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    • @Dara, “Reasonable suspicion and probable cause are entirely distinct legal terms.”

      Understood, but typically to get to the point where you’ve got a “stop” (as opposed to a “contact”) you’ve got to have probable cause in the first place. Admittedly, a mere stop doesn’t usually, in and of itself, provide probable cause for other types of searches, but the requirement of probable cause for a stop (including for an ordinance violation) in the first place significantly mitigates the effects here. Meanwhile, asking for documents that a person is supposed to have on them under federal law to begin with does not strike me as a new infringement on civil liberties (the original federal law is the infringement).

      As for the citizen suit issue, I agree that it is unique, but after the revision, it is limited to challenges of a “policy” rather than a “policy or practice.” This is, in practice, a huge distinction, so the effects of this provision will be quite limited. Even if their effects are large, though, the problems with this provision strike me as more problems of local autonomy than of civil liberties.

      Look – I agree that this is a bad bill. I agree that it will have pernicious effects. I hope that it gets found unconstitutional. But it also strikes me as more the natural and unavoidable consequence of bad federal laws.

      I think proponents of open borders and/or reduced immigration restrictions (and I am passionately such a proponent) need to recognize that the illegality of immigration has pernicious local side effects and propose realistic local alternatives to deal with those pernicious side effects. If we can’t, then we need to recognize that this legislation, at least post-revision, is a legitimate (if ill-conceived) attempt to deal with those effects and fight harder to remove the direct cause of those problems.

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      • @Mark Thompson,

        Good catch on “policy or practice.” Bad move on assuming that that’s going to have a major effect. Chilling effects happen before the lawsuit gets filed, and that’s not a specific enough clarification for anyone to know in advance which lawsuits they can risk attracting. (After all, what about a policy that police had to spend most of their time investigating violent crime?)

        You won’t find any argument from anyone that this is the consequence of a broken federal immigration system. But that doesn’t mean it’s no different from federal law. And I don’t think that a law that empowers the nativists in a community to spend their time calling in suspected undocumented immigrants, but prohibits their more sympathetic neighbors from doing anything to take care of said immigrants, is in any way a workable local solution. It’s a flattening of civil society and a warping of the justice system for populist ends.

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        • @Dara, I’m not sure I understand what the hypothetical chilling effect would be here, especially once you’ve eliminated the “or practice” bit. I don’t know enough about Arizona municipal law to say for certain, but at least here in New Jersey, the construction of the word “policy” would be fairly clear given that we have a constitutional rule requiring that any law be read in favor of the municipality’s exercise of powers. In effect, this would mean that the term “policy” in the AZ legislation would be clearly limited to policy that explicitly attempts to undermine the enforcement of immigration laws. When you add “practice” into the mix, you make things considerably broader because at that point you start dealing with patterns of conduct.

          In another context, this is the difference between a prohibition on written policies that say “we will only promote white males” and a prohibition on disparate treatment. The former will have only minimal impact on hiring practices; the latter will have a huge impact.

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    • @Dara, “There’s also the citizen lawsuit provision. No other law in the country allows a private citizen to sue a city if he thinks the police aren’t being aggressive enough in enforcing a particular law. ”

      This is beyond a smoking gun in terms of intent; it’s like somebody walking down the street chewing on a human arm.

      “This forces police to choose to pull over a suspected undocumented immigrant with a broken taillight instead of responding to a shots-fired call, because if they get caught leaving the immigrant they could get sued.”

      Or more likely, being sued if they don’t stop each and every, uh, ‘immigrant-looking’ person, and demanding to see their proof of citizenship/residency.

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  3. I too thought the amended law was a significant improvement until I read this hypothetical at the Corner where the law should be apply. Long story short, a van full of Hispanics is stopped for an improper lane change and only the driver has his license; because the rest of the passengers don’t speak good English, the whole van is escorted to ICE to validate their citizenship. Lowry then has the gall proclaim that this is “eminently reasonable”.

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  4. I agree that the omigodthenazis! response is over-the-top and hyperbolic, but I think it might be because people are letting out opinions that they’ve been stifling for some time. Your first point- “I’m a committed believer in open borders and, failing that, of a robust guest worker program and something in the neighborhood of absolute amnesty for illegal immigrants.” Yeah, me too. However, when I’m in the states (pretty regularly in fact) I don’t know anyone who says that. I don’t ever hear it expressed. Instead, I hear over-the-top hysteria about “the illegals” on the national news, the local news, and in letters to the local paper (on that side of the border, natch). I hear from students at the university I teach at worried sick about the “illegals” who are going to destroy the country, in a part of the country where Hispanics are as rare as hen’s teeth. My favorite was a letter in our student paper about how, “after the illegals take over, you won’t even be able to live!!” And, like most people, I hear this stuff, I bite my tongue, and the most I say is, “Oh, I don’t know…” If it’s one of my relatives ranting about it, I change the subject.

    And, you know, it’s been like that for three or four years now. So, I think what you’re seeing in the over-the-top hysteria about “papers, please” is what you might call a “backlash”.

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  5. This was far more cogent than my series of pieces that took a similar tack but I wanted to emphasize how much I agree with this particular bit:

    “But these problems are hardly new and unique and for the most part I have a hard time seeing how this will increase racial profiling by a significant amount – for the most part, I assume that cops who are willing to engage in racial profiling in the first place don’t need an added incentive to do so.”

    I think what’s important about this is recognizing what it is that we’re arguing about. Decisions about criminalizing/de-criminalizing generally don’t have widespread effects, what they do is move the margins and in the long term create a society with a different baseline of normal/legal habits than the one that made the change to begin with. Which is why legalizing pot won’t instantly turn millions into potheads but will likely lead to an increase in exposure and casual usage in the long term. In this case, (pre-changes) I think there’s something to be said for not wanting to establish and live in what is basically a police state.

    However the argument that the law would dramatically increase racial profiling tomorrow seems overblown precisely because the officers inclined to racially profile are going to and have been doing so regardless. If the argument then becomes this law is bad because it makes it easier for someone to do something they ought not to be doing in the first place but have been anyway, then the real problem isn’t with the law.

    Which I think is true of this whole law controversy anyway. If the law is only an innovative application of preexisting laws and cultures and not an innovative creation of the same, then we’re angry at the wrong thing. Or perhaps angry at no longer living in a veil of ignorance that suits our moral sensibilities.

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    • @Kyle,

      Mark, I also really liked your point about this being a natural outcome of continued inaction to actually solve our immigration problem. Which frankly is something I think we’ll see more of as Congress is increasingly paralytic, for better and for worse.

      As a sidenote, is there anyone else here who finds it questionable the way we treat immigrant and Latino as metonyms?

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      • @Kyle, “Mark, I also really liked your point about this being a natural outcome of continued inaction to actually solve our immigration problem.”

        And in terms of that, we’ve got major political factions who really enjoy cheap, expendable and exploitable labor. Bucking those factions is near impossible.

        And a guest worker system is almost as poblematic; it’d lead to millions of people who can be deported simply by being fired.

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        • @Barry, Well, guest worker systems vary. I’d favour one that allowed people to change employers, and allowed them the normal 90 days in the US without an employer if they lost their job. This maximizes the chances of people being treated decently and minimizes the downward pressure on wages. I’d also want there to be a path to citizenship if desired. Systems like the German one (no path to citizenship even for guest worker’s descendants) or the one that failed in congress last year (no labour mobility) could be just as bad as the current situaution.

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