Defending the Innocent: Arizona and Immigration

Feathers began flying last Friday hours before Arizona Governor Jan Brewer signed the country’s strictest state law governing illegal immigration, when President Obama called it unfair and promised to have the Justice Department examine it for possible civil rights violations. Criticism of the new law has been fierce.

Much of the criticism is, I think, overblown. It is difficult to regard the law’s requirements as deeply unjust. The law begins with a statement of intent: “The intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.”

Arizona pursues this attrition strategy in a variety of ways. To begin, it requires law enforcement agencies to enforce federal immigration law to its fullest extent, in part by handing over illegal aliens into federal custody. If this is objectionable, it is hard to know why Arizona should be subject to special criticism.

Other requirements are equally reasonable. For example, the law attempts to reduce opportunities in the job market. Employers are forbidden to knowingly hire illegal aliens, and they are required to participate in the federal E-Verify system for determining immigrants’ legal work status. Similarly, illegal aliens may not work or solicit work in the state. The law targets the hiring of illegal day laborers in particular by making it a crime for motor vehicles to impede traffic as they slow and stop to pick up laborers in public places.

One might, of course, disagree with federal law or believe that states should create more opportunities for immigrant labor. But neither of those arguments for modifying federal law suggests that Arizona has now committed some special injustice.

I think the same is true, in fact, of the bill’s most controversial provisions. It makes illegal immigration a state crime and requires immigrants to carry documents showing that they are legally present in this country. The latter, however, is already a federal requirement”indeed, the Arizona law’s provision to this effect is simply contained within a reference to the United States code, so that someone attempting to skim through the law quickly might not even notice it.

More troubling is the requirement that law enforcement officials attempt to determine the immigration status of anyone whom they reasonably suspect of being unlawfully present in the United States. On its face, this seems fair enough, but it conjures fears of police stopping people and demanding to see identity papers with little justification. But even here the criticisms have been over the top. This is not Nazi Germany, nor is it Japanese internment. That someone might be required to show a suspicious police officer a document that he or she is required to carry anyway”just as I would need to show my driver’s license if pulled over”does not seem unjustly burdensome.

To understand the real causes of controversy, therefore, we must dig a bit deeper. They are, I think, twofold, and both reflect broader failures of governance in the U.S. today. First, it is clear that Arizona felt pressed to pass a law of this sort”and that other states will as well”precisely because the national government has for so long failed to deal effectively with the problem of illegal immigration. This may be changing”border security has improved in recent years, and increasing use of E-Verify, despite some initial kinks in the system, has gradually strengthened our ability to detect illegal employment. Nevertheless, this crisis has been two or three decades in the making, and it is not surprising that economic recession would intensify concerns about the federal government’s longstanding failure to enforce its own immigration laws.

Second is a more generalized fear”also, no doubt, prompted in part by recession, though it was visible even before the markets crashed”that the government is simply no longer doing its job. The first duty of the state is fundamentally a moral one: to protect the innocent and punish the guilty. In our system, we accomplish these goals through a system of representative government and the rule of law.

Yet recent events”in particular the completely partisan passage of Obamacare over enormous public opposition from citizens already unhappy about the bailouts, stimulus package, and ballooning deficit”have left many Americans fearing that the government no longer represents them, and that the law can therefore no longer be relied upon to protect them. Certainly poll numbers reflect enormous public distrust of government. The combination of unrepresentative government, economic recession, and past failures to deal with illegal immigration makes for a potent brew.

What does this all mean for immigration policy looking forward? As my comments here indicate, I have considerable sympathy for the efforts at enforcement and attrition reflected in the Arizona law. But I have also disagreed elsewhere with many of my fellow conservatives by arguing in favor of amnesty. (Which I am now supposed to call a “path to citizenship,” I believe.) I continue to think that we have a moral obligation to allow long-term illegal aliens”those, say, who have been present for five years or more”to legalize their status.

But there is a correlate moral obligation not to do so unless current citizens can be assured that the border will be secured and the laws enforced, so that repeated amnesties are not necessary. We might try to capture these paired obligations by saying that the duty of the state is to represent and protect “the people,” but that the composition of “the people” is at some level simply an empirical question”they are those who are, in fact, present and subject to the law.

This combination suggests an “enforcement-first” deal along lines that are by now familiar: improved border security, with a conditional amnesty (payment of back taxes, requirement of English language proficiency) triggered by successfully meeting enforcement benchmarks. What is less clear to me is whether such a deal is any longer possible in the current political climate. Truly “comprehensive” immigration reform would tackle issues such as a guest worker program or increased employment visas for skilled workers, but either of those possibilities, involving increased legal immigration during an economic downturn, seems to be political dynamite.

My own preference would be first to address the dilemma of illegal immigration with the straightforward security-for-amnesty swap just described, and only afterwards to consider whether changing the regulations for legal immigration would also be desirable. Enforce the current law before deciding to change it”or, as they say, don’t knock it ’til you’ve tried it. But whether our current politicians are up to that, and whether such an approach could win public approval, I rather doubt.

Of course, if Arizona or imitator states succeed with an attrition strategy, this outcome might conceivably emerge by default rather than intent, especially if declining numbers of illegal aliens coincide with an economic upturn. In such a situation, comprehensive reform might appear more feasible than it does now. If Obamacare has taught us anything, it is to be suspicious of grand attempts to solve all problems at once and to prefer instead more limited (and, when possible, local) laws aiming at specific problems. In that sense, Arizona may have simply taken the necessary first step toward a broader solution.

Peter Meilaender is associate professor of political science at Houghton College .