ACRU Senior Legal Analyst Ken Klukowski wrote this column appearing on FOXNews.com on May 25, 2010.
There’s a reason President Obama refuses to secure the borders, and insists that the only way to stop illegals from entering this country is to give them all amnesty.
This week Republican senators—including John McCain—told President Obama that there would be no talk about amnesty or a guest-worker program for illegals until his administration secures the border and enforces the law. But despite saying he’ll send 1,200 troops to the border, Obama doesn’t want to secure it, because his blueprint calls for keeping illegals here, and for fighting Arizona’s new law.
In the wake of Mexican President Calderon condemning Arizona’s new law—enthusiastically joined by American President Obama—many on the left are saying that Arizona’s new so-called “immigration law” will be struck down as unconstitutional.
It shouldn’t be struck down, because it’s not an “immigration” law. If any of them bothered to read the 16-page law, they’d understand that.
In April, the state of Arizona enacted a law making it a crime for illegal aliens to be in the state of Arizona. Immediately pundits across the left flooded the airwaves to object. And predictably, people who never went to law school suddenly because constitutional scholars, waxing eloquent to proclaim this law dead on arrival, filling your TV screen to share their collective lack of understanding with you.
First, the lawsuits that have already been filed should be dismissed. For starters, the plaintiffs lack standing in federal court, because none of them have suffered any concrete personal injury that’s different from an “injury” of indignation suffered by the public at large.
Besides that, these cases are not ripe for judicial review. “Ripeness” requires the facts to be fully-developed before a court will consider a case. These plaintiffs allege that police officers will use racial profiling to stop suspected illegals and demand to see papers. Since the law expressly forbids such police actions, these lawsuits are not ripe until the law goes into effect, and then someone alleges that they were subject to abuse.
But once enforcement begins, Arizona should still win on the merits any constitutional challenge.
It’s true that the Constitution vests immigration policy exclusively in the federal government. Article I gives Congress complete control over who can enter this country, stay in this country, or become an American citizen. This power is not shared with the states.
If this Arizona law were an immigration law, then it might be unconstitutional. But it’s not an immigration law. It’s a police-power law, and that’s why Arizona should win.
As I explain in my new book, “The Blueprint: Obama’s Plan to Subvert the Constitution and Build an Imperial Presidency,” the Supreme Court has made clear that states wield police power, and that the Constitution denies police power to the federal government. Police power is the power to make laws for public safety, public health, general public welfare, and social morality.
Arizona’s new law recognizes that foreigners in this country illegally pose a public safety, social morality, and general welfare concern when they enter the state. It violates Arizona labor and employment laws to be working for a business in Arizona if you are here illegally. Such work also involves identify theft and document fraud, which are crimes. And many illegals without gainful employment are instead engaged in drug-dealing or other crimes, or are incarcerated at state expense, or are even living off of welfare programs.
All these issues trigger Arizona’s police power, enabling Arizona to make it a crime to be in that state illegally. It would be unconstitutional for Arizona to try to deport someone, but it’s perfectly constitutional for Arizona to uphold the rule of law within its own borders.
If this law targeted someone based on national origin or race, then it would be subject to “strict scrutiny,” under which the law would be struck down unless a court finds it narrowly tailored to achieve a compelling public interest.
The Arizona law tries to cover its bases in that regard, referring to Arizona’s “compelling” public interests. That very smart legal drafting isn’t surprising, given that Kris Kobach—a brilliant law professor who’s a rising star in the Republican Party, who happens to be running for secretary of state in Kansas—helped write the law.
But this law doesn’t target those protected classes of race or nationality, because it only concerns whether you’re in this country legally, regardless of whether you are a citizen, where you were born, or your skin color. As such, it’s subject to “rational-basis review,” under which the law is upheld if it’s related to advancing any legitimate public interest. All the police-power matters cited above are legitimate interests.
Like most laws, there are ways that this law could be abused that would violate people’s rights, and if so then those who suffer such abuse could hold those responsible to account. But the law, especially the amended version as it is now written, can be fully implemented in ways that don’t violate anyone’s rights.
It’s unfortunate that Arizona had to be forced into this situation by the federal government’s failure to address this problem. But whether it’s good policy is irrelevant. Arizona’s actions are permitted by the Constitution.
But the Obama administration’s actions are not permitted by the Constitution. The president is responsible under Article II for taking care that the laws be faithfully executed. As Ann Coulter has pointed out, the state of Arizona can sue to try obtaining a federal court order compelling the director of ICE (Immigration and Customs Enforcement), John Morton, to process referrals of illegals from Arizona, since Morton has said he’s inclined not to do so in retaliation for Arizona’s law. The Obama administration cannot refuse to enforce U.S. law.
However, as explained in The Blueprint, there’s a reason President Obama refuses to secure the borders, and insists that the only way to stop illegals from entering this country is to give them all amnesty. (Which makes no sense at all.) He ultimately wants to create 12 million new voting citizens who lack the language or skill set to thrive in this country. Why? So that he and his party can create a massive new voting bloc of lower-class or impoverished citizens beholden to him, who will vote for every handout imaginable, paid for by taxes on the middle class and business owners.
It’s a cynical form of pandering. It’s politics at its worst. But President Obama needs those votes to help survive the political backlash coming from the voters, and his blueprint calls for doing whatever it takes to get them.