Arizona Illegal Alien Bill – A Weak Defense
Arizona’s ill conceived illegal alien crackdown, which is so obviously overbroad as to have drawn concern from Tom Tancredo, Marco Rubio, Karl Rove, Jeb Bush, Lindsey Graham and Joe Scarborough, has drawn one unlikely defender: George Will.
It is passing strange for federal officials, including the president, to accuse Arizona of irresponsibility while the federal government is refusing to fulfill its responsibility to control the nation’s borders. Such control is an essential attribute of national sovereignty. America is the only developed nation that has a 2,000-mile border with a developing nation, and the government’s refusal to control that border is why there are an estimated 460,000 illegal immigrants in Arizona and why the nation, sensibly insisting on first things first, resists “comprehensive” immigration reform.
Arizona’s law makes what is already a federal offense — being in the country illegally — a state offense. Some critics seem not to understand Arizona’s right to assert concurrent jurisdiction. The Mexican American Legal Defense and Education Fund attacks Gov. Jan Brewer’s character and motives, saying she “caved to the radical fringe.” This poses a semantic puzzle: Can the large majority of Arizonans who support the law be a “fringe” of their state?
I’m with him so far. But the criticism isn’t of the bill’s intent but it’s method and likely consequences. He retorts:
But Arizona’s statute is not presumptively unconstitutional merely because it says that police officers are required to try to make “a reasonable attempt” to determine the status of a person “where reasonable suspicion exists” that the person is here illegally. The fact that the meaning of “reasonable” will not be obvious in many contexts does not make the law obviously too vague to stand. The Bill of Rights — the Fourth Amendment — proscribes “unreasonable searches and seizures.” What “reasonable” means in practice is still being refined by case law — as is that amendment’s stipulation that no warrants shall be issued “but upon probable cause.” There has also been careful case-by-case refinement of the familiar and indispensable concept of “reasonable suspicion.”
And that’s technically right as far as it goes. But it’s one thing to have a reasonable suspicion that someone is, say, stealing a television and quite another to have a reasonable suspicion that a person isn’t a citizen or authorized visitor. Unless one restricts it to cases where an officer has a specific tip — all the employees of Firm X are illegals, say — it’s mighty hard to develop a suspicion that someone is here illegally without resorting to racial and linguistic profiling. And, in a state that’s one third Hispanic, that’s an enforcement nightmare.
Some critics say Arizona’s law is unconstitutional because the 14th Amendment’s guarantee of “equal protection of the laws” prevents the government from taking action on the basis of race. Liberals, however, cannot comfortably make this argument because they support racial set-asides in government contracting, racial preferences in college admissions, racial gerrymandering of legislative districts and other aspects of a racial spoils system. Although liberals are appalled by racial profiling, some seem to think vocational profiling (police officers are insensitive incompetents) is merely intellectual efficiency, as is state profiling (Arizonans are xenophobic).
Oh, c’mon. The argument isn’t that police are incompetent but that they’re not equipped to correctly guess a person’s citizenship with sufficient accuracy to allow them going around demanding to see identification. And that the disparate impact of these errors will fall on people who look and talk a certain way.
Will’s closer is a beaut:
Non-Hispanic Arizonans of all sorts live congenially with all sorts of persons of Hispanic descent. These include some whose ancestors got to Arizona before statehood — some even before it was a territory. They were in America before most Americans’ ancestors arrived. Arizonans should not be judged disdainfully and from a distance by people whose closest contacts with Hispanics are with fine men and women who trim their lawns and put plates in front of them at restaurants, not with illegal immigrants passing through their back yards at 3 a.m.
This earns a terse imperative from Julian Sanchez, who further explains:
Ho ho! See what he did there? He’s flipping the script! It’s critics of the law—all presumably themselves non-Hispanic—who are out of touch! Because seriously, where would middle-class professionals and journalists outside Arizona ever encounter a Hispanic, except when they need their hedges trimmed or their tables bussed? That’s pretty much all they do, right?
Now, of course, Will is arguing that it’s the liberal elite who think of Hispanics only as service workers. But Julian’s right: There are plenty of professional class Hispanics in these parts — along with plenty of day laborers, housekeepers, and other low wage service employees. Most affluent Washingtonians encounter plenty of both.
And, while there may be some disdain of the ignorant yahoos of Flyover Country from some of the coastal elite criticizing the law, the fact that even anti-illegal immigration die-hards like Tancredo are speaking out against this particular law would seem prima facie evidence that there’s something about this particular law is problematic. And it’s not a love of illegal aliens but rather a fear of unchecked government power.