Congress Passed an Arizona-Like Immigration Law in 1996

A federal statute already empowers locals to enforce immigration law, so why is it unconstitutional in Arizona?

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Congress is always looking to get tough on something. It plays well on the campaign trail. Get tough on crime. Get tough on corporate ethics. Get tough on fanny packs and man purses. Just this year Congress got tough on Ford Motor Company by giving the administration millions of dollars to subsidize General Motors. [See which industries give the most to members of Congress.]

Back in 1996 (when fanny packs were still cool, in some circles) it was time to get tough on immigration, and an interesting little law was passed. Congress deemed it appropriate for state and local law enforcement to enforce immigration law. In the inscrutable manners of Washington (where all legislation seems to be named with insufferably cute acronyms or indecipherable legislative codes that read like security passwords), this law came to be known as 287g.

Want to know what 287g says? Well, just read the law in Arizona. Yes, that law. The one causing protests in the streets of Phoenix, hysteria on cable talk shows and confusion in the courts. The one that empowers state and local law enforcement to enforce immigration law.

[Check out a roundup of editorial cartoons on immigration.]

The federal law that has been on the books for more than decade … empowers state and local law enforcement to impose immigration law. According to U.S. Immigration and Customs Enforcement, more than 60 jurisdictions in states across the country have taken advantage of this law.

Florida, Virginia, Oklahoma, Ohio, New Hampshire, California, and even Massachusetts are among the states in which local police are enforcing immigration law.

Seems we’re missing out on the chance for a lot more street theater and cable news shouting from both sides of the partisan divide. Why stop at the Arizona border?

There are differences in the federal and Arizona law but the primary gist of each--the aspect that has caused most of the ruckus--is the provision that allows a local law enforcement officer, who in the course of his or her regular duties has reasonable suspicion that an individual is in the country illegally, to request identification and, if none is provided, to detain that individual for potential deportation.

The federal version of the law requires the Department of Homeland Security to approve state and local requests to enroll in the program; then ICE is to provide training and assume supervision of cross-designated officers when they are engaged in immigration enforcement. The Arizona law, on the other hand, actually requires all law enforcement to enforce immigration laws regardless of whether DHS has given its blessing. If the federal law is gingerly tip-toeing into the shallow end of the immigration pool, the Arizona law is a cannonball dive into the crowded deep end.

The practical result of both laws is that the local law enforcement officer must coordinate with federal immigration agents to determine the status of those detained and request that federal agents pick up the individual for deportation. Which the ICE agents will likely ignore--the dirty little not-so-secret secret of immigration enforcement. 

The reality is that ICE has nowhere near the manpower or resources to start picking up detained aliens in localities around the country. There are 10 to 12 million illegal immigrants in the country but only about 5,000 to 6,000 ICE agents. To give this figure some context, New York City alone has more than 35,000 cops. It’s just one more example of Congress passing laws with no intention of providing the resources to ensure they’re enforced.

Which makes this controversy as much a legal debate as an enforcement matter. In her injunction blocking the key provisions of the Arizona law, Judge Susan Bolton asserts that Arizona’s law intrudes upon the powers of the federal government’s role in enforcing immigration law. However, 287g is an actual federal statute asking for such intrusion. Consider this: On its website, ICE refers to 287g as “one of the Agency's most successful and popular partnership initiatives as more state and local leaders have come to understand how a shared approach to immigration enforcement can benefit their communities.”

In Bolton’s judgment, though, “requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully present aliens because their liberty will be restricted while their status is checked.”

Not quite. The Arizona law doesn’t require that every individual have his or her immigration status checked; only those who present law enforcement officers with “reasonable suspicion” in the normal course of duty--which is what the federal law also requires. In any case, by Judge Bolton’s logic, both the federal and state laws will unavoidably restrict the liberty of lawfully present aliens “while their status is checked.”

So if it is unconstitutional in Arizona, why is it not unconstitutional in the 60-plus other jurisdictions that have signed agreements with DHS, some of which have been in operation since at least 2002?

[Poll: Was Blocking the Arizona Immigration Law the Right Decision?]

Which begs another question: Since Attorney General Eric Holder is in a litigating mood, now that he has sued the people of Arizona will he sue Congress and the Department of Homeland Security? Come to think of it, since the Justice Department was responsible for enforcing immigration when this law was first passed, would Holder sue himself?

And would he stand for the prosecution or the defense?

  • Check out a roundup of editorial cartoons on immigration.
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