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.
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.