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Saturday, April 24, 2010

Saturday Night Card Game (The Arizona Immigration Bill Is Not Racist)

This is the latest in a series on the use of the race card for political gain:

The Governor of Arizona just signed a bill which, in the words of opponents, is the equivalent of the Japanese internment during WWII, the Nazi Nuremberg laws, and a host of other racist or allegedly racist wrongs which have been committed since the dawn of mankind. Cassy Fiano has a good roundup of the reaction.

I then did something almost no one else has done. Certainly not the people claiming the bill is racist. I actually read the bill, not just the news reports.

The bill does raise public policy issues as to whether we really want to enforce the immigration laws, but it is not racist.

The bill amends existing law to prevent the type of "sanctuary city" resolutions which have passed elsewhere in the nation which seek to restrict local authorities from enforcing federal immigration laws, reporting illegal immigrants to the federal government, and a host of other restrictions:
11-1051 A. No official or agency of this state or a county, city, town or other political subdivision of this state may limit or restrict the enforcement of federal immigration laws to less than the full extent permitted by federal law.
What follows after this introductory provision are specific provisions which empower (but do not mandate) law enforcement to enforce the law, including asking for proof of legal immigration status if there is an otherwise lawful stop of the person.

Again, the law does not authorize unlawful stops, but only permits verification of immigration status once a lawful stop has been made (emphasis mine):
11-1051 B. For any lawful contact made by a law enforcement official or a law enforcement agency of this state of a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation....
The law also does not attempt to supplant or expand federal law, contrary to what many people have claimed, and specifically states that it does not change federal civil rights laws (emphasis mine):

11-1051 E. Except as provided in federal law, officials or agencies of this state and counties, cities, towns and other political subdivisions of this state may not be prohibited or in any way be restricted from sending, receiving or maintaining information relating to the immigration status of any individual or exchanging that information with any other federal, state or local governmental entity for the following official purposes....

K. This section shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.

Nothing in the law authorizes stopping people because of their skin color. The law simply provides guidelines as to what is permissible in accordance with federal law, and the procedures that should be used.

Could the law be abused? Sure, so can any law.

Claims of "driving while black" and other racial profiling have abounded for decades. But we don't eliminate the enforcement of traffic laws just because some police racially profile; instead we educate and discipline police who use racially neutral traffic laws for racial purposes. Why should the immigration laws be any different?

If you want to argue that the law is not sound on civil liberties grounds, do so. If you want to argue that as a matter of public policy local governments should not enforce the immigration laws, then make that argument.

But the one argument which is not legitimate is that the law is racist. Because it is not.

Update: In hindsight, I probably used the term "enforce" too loosely. The State of Arizona is not enforcing the immigration laws directly, it is reporting and/or turning over illegal aliens to federal authorities who then will enforce the immigration laws (in theory):
11-1051 C. If an alien who is unlawfully present in the United States is convicted of a violation of state or local law, on discharge from imprisonment or on the assessment of any monetary obligation that is imposed, the United States Immigration and Customs Enforcement or The United States Customs and Border Protection shall be immediately notified.
To the extent the bill does seek collateral enforcement such as through employer sanctions, it does so in a manner not contrary to federal law. So the Arizona bill does not, to me, present constitutional issues as to the supremacy of federal law; but even if there were a valid constitutional challenge, that would not render the bill racist.

Also, I have corrected some of the section citations and bill wording from the original post, none of which made any difference to the argument. There have been a number of different final versions of the bill linked by various news organizations, but the wording above should be the final final version.

Update 4-30-2010: The Arizona legislature is in the process of amending the law to clarify certain terms, which should insulate the legislation from some of the anticipated challenges. (h/t HotAir) For a discussion of prior Supreme Court precedent, proving that many of the claims of critics are outlandish, see Do NOT Read This Supreme Court Decision.

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  1. So, defending the citizens of Arizona from illegal aliens engaged in drug trafficking, human trafficking, kidnapping and murder, is a racist act. Hummmm. Defending the United States from attack by extremist Islamic jihadists is a racist act. Hummmm. It seems to me that in these heady days of the Obama administration being an American and believing in the defense of the nation and the people defines one as a racist.

    I think I will be forced to be a racist if that is the definition.

  2. Thank you, William. Great analysis.

  3. William,

    I was waiting for you to jump on this issue. No the bill isn't racist, just hugely unconstitutional concerning detention, probable cause, arrests, reasonable suspicion and on and on. I've worked the street for twenty years and can say without a doubt this won't hold in its current form. There is too much case law already on the books that will cripple any legitimate law enforcement efforts. Here is my post at my site


    The disease isn't the illegals. They are just a symptom. The disease is the money. Here is a portion of my post-

    "So, what is the disease that keeps the boils popping up? Remember the rule- “Chase the offender not the offense.” What is the offender here? Simple- money. The illegals come here to make money taking jobs we won’t take for the wages offered. It is a boon to them and a relief to us. The politicians see illegals as a way to insure their return to power in D.C. which of course makes them rich. Businesses want illegals to work for them because they cost less to employ. The government, especially the Social Security department, likes the idea of having seven and a half percent sent into their coffers under a fake social security number. If they didn’t, would they not immediately notify the employer?

    It is and always has been about the money."

    Once again the political class kicked the can down the road and made the pasty the cops. You want to end illegal immigration? Dry up the motive that brings them here. Dry up the money. No jobs, no free programs, no healthcare. They will not come here. There would be no reason.

    Here is the closing paragraph-

    "If you want to really solve this problem, cut out the disease. Cut out the ability for the illegal to gain anything from coming here. In exchange, offer them a guest visa, documentation, a limited period of time they can stay, a requirement to return home for a period of time, and the all American opportunity to pay all the taxes our government demands be paid by all citizens. I think you would find many would still want to come, it is America after all, but many would chose to stay home and work on improving their own country.

    Which would be another disease worth curing."

    But the politicians won't do that. Too much to lose- for them.

  4. Hello to all you new racists... welcome to the club . I have been a racist since I supported Hillary in the primary ....this club is one of the most rapidly growing in the country .. You are in good company ...mildly confused as to how we got here at times ... but good company.

  5. Suspicions confirmed. The rabid libruls, most especially their shoot-off-your-mouth-first-and ascertain-the-facts-later leader, don't know what they are talking about. Another valuable piece, Bill. Thank you.

  6. An employer cannot demand proof of residence or citizenship when hiring. When the law is changed to permit that and the employer has access to a database to confirm that then one can blame employers for hiring illegals. Another point is that illegals for the most part are not stupid or ignorant, they won't work for a dollar an hour. They generally get paid in the 7 to 15 dollar an hour range but usually in cash. So they net more than a legally employed person (the ones getting paid in cash, not using someone else's s.s number).

    The real issue is if there is such a demand for illegal alien workers, why do we still have welfare? Shouldn't those adults on welfare ought to be doing the work the illegals do? Or perhaps those on welfare have come to the conclusion of why work when working the system well gives them the equivalent of a 40 thousand a year income. Not exactly honest but certainly not stupid. Severely restrict welfare and cut taxes, provide employers the upfront ability to verify status before hiring and the illegal issue largely resolves itself.

  7. Gee, archer, I can't see how your idea would work or be sustained by out political system. We (somehow) cut off the money to an estimated 10 to 20 million illegals? Then what? They starve on their way back to Mexico, Guatemala, Honduras, Cuba, Canada, etc?
    Where is the constitutional argument for this idea. Bill has already demonstrated that the Arizona bill is quite rational and constitutional. Incidentally, that is why Obama and the Dems have gone into panic mode and are now going to try to quickly force an amnesty bill on our adoring and happy citizens.

  8. You've missed the point. The law isn't racist because of anything in the law. The law is racist because Important People are afraid it will be bad for People of Color.

    Oh! And because many Conservatives support it.

    That's all it takes in today's America.

  9. Archer52,

    You are partly right. We do have to enforce immigration law against both illegals and Americans enabling them. But, that does nothing to stop the drug smuggling and violence along the border. Raiding or fining a company in Wisconsin wouldn't have kept the ranger from getting killed. We have border chaos and it is being exploited by both people coming over to get work and violent individuals who are spilling a Mexican drug war onto our sovereign territory.

    This is why there does have to be comprehensive immigration reform. We need to can control over our border AND find a solution for the illegal workers in the USA.

    If the federal gov't is unwilling to protect American citizens from violent Mexican gangs, then I will stand beside Arizona if it wants to take steps to at least try and protect it's own citizens.

  10. The number of people who will hear "archer52"'s plea is very small, and it will have no impact. And, that's because he doesn't realize that simply suggesting that we enforce the laws has no impact: pols will keep on doing what they've been doing.

    Now, if anyone wants to actually do something, you can be an extreme outlier and help me do things like discredit those who've lied about the law. This post about Rachel Maddow lying links to three other posts about others lying; all of them lied about a major provision highlighted in the post.

    If I could get enough people to pressure those liars (via email, web forms, or Twitter), they might be forced to retract their claims. And, if that kept happening with others, we might be able to get to the point where we could have a real debate about this issue.

    However, simply throwing out ideas isn't going to work: you have to do the preliminary work first. And, like I said, I'm almost alone in doing that.

  11. For all of those who commented on my post, please visit my site for more details. I did several long posts there. www.truthandcommonsense.com

    Quickly though I'll address the questions

    Cubanbob is right. We have too many professional welfare recipients, but one issue may not be directly related to the other. Lazy or disabled or infirm people getting paid not to work by our misguided government is not the real reason why illegals work here. Yes, more jobs for low end American workers would reduce some welfare and unemployment. But we are experiencing a weird situation now where people unemployed from the recession are apparently deciding to stay on unemployment rather than take a part time job or one that pay only a little more than the unemployment. What does that say about the workforce?

    Itofinf- Read my post. I said in it that we need to cut off the money supply to the illegals but at the same time offer guest worker permits to them. If THEY refuse to comply with that effort that is THEIR choice and if they go hungry it was by their free will. They have no inherent constitutional right to be here. I suggested that the program should allow several months to be implemented. The illegal could start the process while in the U.S. All I ask is that even if he or she is approved he or she must return home and then come back across to be cleared correctly. A sort of "tagging the base" issue. It will give us time to consider the application.

    James- Actually it does help enforce drug smuggling. I suggest we beef up the border in addition to the other measures, but understand many illegals coming across are forced to be mules. If there are no illegals coming across looking for work, the amount of "mules" available is vastly reduced. It is a numbers game. Let's say on any given day a thousand people make it across. A hundred of them are drug smugglers. Ten percent. If the amount of people is reduced to a hundred, that means either everybody is smuggling or only ten are smuggling, assuming all things are the same.

    Plus the border patrol will not be overwhelmed by the sheer number as they are now. Sometimes they look like a dog catcher trying to grab a hundred dogs running by him at the same time. Like 101 Dalmatians. Reduce the number and they can concentrate on the drug smugglers.

  12. Anyone find it ironic that in Obama's first interaction as president with a prominent case involving "reasonable suspicion" - the Henry Louis Gates arrest- that the former Con. Law guest lecturer Obama jumped to conclusions without even knowing the facts and implied that the arrest was race-based? Hmmm... Or that an administration that wanted us all to snitch on anybody we felt harbored "fishy" beliefs about Obamacare, is now suddenly concerned about "civil liberties"?

    And for those pro-amnesty Republicans who still don't get why we need a law like- shouldn't you at least provide protections so that all overseas ballots filed by our servicemen and women are counted before attempting to extend voting rights to people who broke the law to get here?

  13. I'm curious:

    How does Mr. Jacobson view Jim Crow laws - for example, those that purposely disenfranchised blacks by adding literacy requirements to voting qualifications? Does Mr. Jacobson consider those to have been "racist", or not? After all, those laws did not mention race. Right?

    Just wondering.

  14. Thanks for posting specific citations to the law. One important point, however: "Any lawful contact" is potentially very broad, isn't it? Would that include, for example random state-run immigration checkpoints? What in the law would prevent Arizona from setting up random immigration checkpoints and requesting immigration papers from everyone "where reasonable suspicion exists that the person is an alien"?

    To be specific, does the law as written or the federal laws to which it refers prevent an over-zealous Arizona lawman (say a grandstanding Phoenix sherriff) from setting up a checkpoint, requiring immigration papers from everyone suspicious, and turning over everyone who can't produce them on the spot to federal immigration authorities? What factors independent of race and accent would police the police be able to use to constitute reasonable suspicion in such cases?

    I have other concerns about this law as well, for example the possibility that it might result in an increase in violent crime rate because some people will be less likely to report suspicious activity because that would initiate a "legal contact". This is a practical as opposed to a legal concern, however.

    Anyway, since I'm not a lawyer, I'm interested in your opinion on if the law as written would allow, for example, state-run immigration checkpoints that would turn into de facto "driving-while-hispanic" checkpoints.

  15. I agree with Archer52.

    Cut down on the total number of illegals and that's less mules for the cartels to use.

    Power comes from two sources: money and people. Cut one off and they have to spened a lot more of the other.

    Maybe raiding that one store in Wisconsin wouldn't save that border patrolman's life, but raiding 1000 such stores might make it impossible for a drug cartel runner to find enough mules to threaten the life of a nother one.

    And lets face it: the law is the law. It's either enforced or meaningless. I for one would rather see it enforced.