Why the U.S. had to challenge Arizona on immigration

The Washington Post

July 22, 2010

By James Ziglar and Doris Meissner

The Obama administration had no choice but to challenge the constitutionality of Arizona's far-reaching immigration law, whatever the litigation's eventual outcome.

Our experiences administering the nation's immigration system, under Republican and Democratic presidents, have convinced us that the challenge to Arizona's statute is essential to clarify, once again, who in our federal system has responsibility for setting immigration policy.

At first blush, Arizona's approach may appear to be a rational response to its burdens as the key gateway for illegal immigration at the Southwest border. But since the mid-1800s, the Supreme Court has upheld and expanded the federal government's primacy in establishing and enforcing immigration policy. When Arizona lawmakers passed S.B. 1070, a significant challenge to this settled constitutional principle, they virtually guaranteed that the federal courts would have to judge the constitutionality of their actions.

Allowing states to set their own immigration policies fails to solve the overall problem of illegal immigration and violates the supremacy clause of the Constitution. The federal government can permit states and localities to act on its behalf in immigration matters, but it must expressly delegate that authority. To that end, Congress passed legislation in 1996 that allows the Department of Homeland Security to make agreements with states and localities -- called 287 (g)s for the applicable code section -- to assist in immigration enforcement.

DHS has signed more than 70 such agreements, including with the state of Arizona and some of its municipalities. This program, while controversial, appears to be constitutionally sound because it supplements -- not supplants -- federal authority based on a specific delegation. Arizona's controversial law, however, appears to go well beyond the intent of 287(g), asserting for itself even greater powers to fashion immigration policy. Its approach invites a patchwork of inconsistent state policies, with results as untenable as having states set their own defense or foreign policies.

Likewise, S.B. 1070 impedes the federal government's ability to meet law enforcement objectives set by Congress and the president to protect public safety broadly. Such duties require a coordinated federal system that reconciles competing demands with available resources and shifting priorities. In the 1990s, for example, immigration policy focused on strengthening border security. After the Sept. 11, 2001, attacks, priorities shifted to national security targets. More recently, the administration has directed resources toward helping Mexico eliminate drug cartel violence. Immigration officials must be able to adjust enforcement priorities and practices in light of changing circumstances.

All Americans should demand that their government meet its constitutional responsibilities. But the remedy for failure or policy disagreements is not to ignore the constitutional principles that bind us. Rather, it is to secure accountability for government performance or changes through the ballot box.

The most important fact driving the Arizona action is a question: Why are an estimated 11 million people in this country illegally? It is not because they preferred to come illegally, with the inherent dangers of exploitation, uncertainty and even physical danger for themselves and their families. The simple answer is that our immigration laws provide inadequate legal avenues to enter the United States for employment purposes at levels that our economy demands. Congress has refused to deal with this reality for decades.

The mismatch is stark. Only 5,000 visas are available for low-skilled workers, whereas until 2008, the unauthorized population grew annually by about 500,000 mostly low-skilled workers. Even in this recession, more jobs are filled at high rates by immigrants, including unauthorized immigrants, than our outdated visa allocations can accommodate. A Mexican national, for example, would wait 10 years or more to get a visa under today's system. It is not surprising that we have so many unauthorized people among us because employers and workers obey market, not government, rules.

Tightening border controls, while essential, has exacerbated the problem. Today, our borders are more secure than ever -- so those here illegally stay because re-entry is perilous. Other perverse consequences will continue until the underlying causes of illegal immigration diminish. Calls for "enforcement first" may have political appeal, but they are unworkable without a simultaneous federal overhaul of our immigration laws that includes effective enforcement, legal immigration reform and legalization for unauthorized immigrants.

We sympathize with the public frustration reflected in Arizona's law. We hope it pushes Congress to reclaim federal leadership in addressing the nation's immigration challenges. However aggrieved Arizona may be, allowing states to set immigration policies violates established constitutional principles and fails to solve the overall problem. Any administration, Democratic or Republican, would have to challenge Arizona's statute. In court Thursday, the Obama administration is defending a core constitutional principle that makes it possible for immigration to continue to serve important national interests.

Jim Ziglar, Senior Counsel at Van Ness Feldman, is a senior fellow at the Migration Policy Institute and served as the commissioner of the Immigration and Naturalization Service from 2001 to 2002. 


This article originally appeared as an op-ed in the July 22, 2010 edition of the Washington Post.

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