May Day Tea Parties

Most recently, the political left accused conservatives of dumbing down the President’s health care bill. It did not usher in “socialized medicine” and did not call for “death panels.” The conservatives weren’t completely wrong. The bill – both by its provisions and by anticipated responses to what are the almost certain ways in which it will fail to achieve its intended purposes – dramatically increases and centralizes public control of health care markets including decisions on what treatments are and are not “cost effective.”

But the folks on the left also had a point. Although one cannot expect mass political movements to be marked by the dispassionate and, we hope, carefully reasoned discourse to be heard in the court room or lecture hall, supporters of the health care bill argued (with some justification) that the over the top rhetoric obscured rather than clarified. Tea parties, they said and still say, are exercises in political hysteria and ignorance in which honest differences of opinion are turned into existential conflict and ordinary political opponents are portrayed as extraordinarily evil. Mass opposition to disfavored legislation and politicians is fine as long as it is accurate and temperate. This is what they say.

Except when they don’t.

I am not overly enamored with the prospects for Arizona’s so-called Support Our Law Enforcement and Safe Neighborhoods Act. My initial reaction is to call for an immediate and unforgiving ban on self congratulatory and tendentious titles for legislation. I mean it. Zero tolerance.

My second reaction is that, as an effort to reduce illegal immigration, the law is probably futile. It seems to me that we may  – with some substantial difficulty – be able to reduce illegal entries at the border or reduce demand by making it difficult to employ those who are here illegally(although efforts to date have been ineffective). But rounding up people after they have crossed the border and moved across the country is a bit like trying to reassemble a shattered bottle. It would, in any event, require far more intrusive regulation than Arizona contemplates. The state – which bears a disproportionate burden from what is rather schizophrenic national policy – is trying to make a point about federal inaction. I don’t know if this legislation can do  anymore than that.

My final – and lasting –  reaction is that the response to the bill is just as over the top as the most silly Tea Party. We are told, it is “racist,” “hysterical nativism,” and evocative of Nazi Germany and Communist Russia. It is cause, we hear, to read Arizona out of the civilized community.

But, near as I can tell, the law (or, at least, that part which draws the most attention) gives Arizona law enforcement no power that the federal government  does not already possess. In fact, the bill seems to have been written to be consistent with federal law so as to avoid the preemption problems that doomed more restrictive state immigration laws in California. If the law legalizes racial profiling or “outlaws Hispanics,” Congress did much the same thing years ago. If we are to boycott the Arizona Diamondbacks, we ought to want to ostracize the Washington Nationals as well.

The law might be unconstitutional but, if it is, it is likely because it is preempted by federal law –not that it violates the constitutional rights of individuals, creates a police state or is evocative of Nazi Germany. Yet, in the coverage of Saturday’s protests, I noticed no signs demanding that Arizona respect the sacred doctrine of field preemption. Marchers were not crying out in support of a God given right to be stopped only by agents of the federal government on matters related to the control of our national borders. Paeans were sung to the 4th and 14th amendments, not to the Supremacy clause.

The bill empowers local officials to interrogate persons who are “reasonably suspected” of being in the United States illegally. Frank Rich, who seems to be genuinely convicted of the notion that anyone who believes that a federal government that consumes 18-20% of GDP is “racist” and “hateful,” calls Arizona’s “tilt to the dark side” the “show me your papers law.” But resident aliens are already required to carry documentation at all times. While that requirement does not apply to US citizens, federal law also expressly provides that immigration officials can interrogate and, under certain circumstances, even detain persons who they have reason to believe are in the United States illegally.

Of course, there is a danger, in this context, that a “reasonable suspicion” standard will result in racial profiling. Perhaps that is sufficient reason not to permit stops of this sort. While the Arizona law expressly prohibits racial profiling, that doesn’t guarantee it will not occur.

But federal law  – supported over the years by Democrats and Republicans – permits the same activities and utilizing the same standard. In fact, stops based on “reasonable suspicion” have long been thought to be constitutional (remember Terry v. Ohio) and the ability of federal agents to do so in the context of enforcing the immigration laws has been upheld. There is a developed body of law defining what is and is not reasonable suspicion and it is not simply that a person “looks Hispanic.”* It is not self evident that empowering state law enforcement to do that same things results in a legal regime that is different in kind than that we have lived with for years.

As noted earlier, I think the law a largely futile response prompted by the federal government’s failure to enforce its own laws – a failure that seems to be attributable to ambivalence about (or even opposition to) enforcement of the law, the nasty demagoguery that has grown up around the immigration issue and the extreme difficulty of policing a lengthy border that millions of people have a powerful incentive to cross.

I am not much of a hawk on immigration. I do believe that liberal immigration laws have changed the character of a number of European nations in a way that longstanding residents might reasonably oppose and, in a forthcoming piece in WI Interest, I talk about whether  communities have a right to define themselves through exclusion. But the largely Hispanic immigration into the United States has generally not raised those issues. It has not created serious cultural conflict and, with the possible exception of places like Arizona into which there has been a huge influx of poor persons without the means of survival, it has not resulted in increases in crime. It is, for the most part, an economic issue.

As Professor Fallone argues, it is certainly not blameworthy for persons to want to come to the United States for a better life. But it is not self evident that it is in the interest of the United States – particularly the interest of  low skill workers in the United States – to permit that to happen. I agree that immigration into the United States is a regulatory problem, but regulation may well involve restriction and restriction may require the application of coercive measures to those – including employers seeking to save on labor costs – who will not comply.

What sort of restrictions and enforcement are appropriate is something on which reasonable people may differ. But if the health care debate (and it is not over) is not be furthered by charges of “death panels,” the discussion of immigration reform is not aided by charges of fascism and racism.

This Post Has One Comment

  1. Sean Samis

    I have to say I generally agree with Professor Esenberg’s comments regarding Arizona’s immigration enforcement statute.

    Probably from ignorance alone, I do find this part problematic:

    Sect. 13-1509. Trespassing by illegal aliens; assessment; exception; classification

    A. In addition to any violation of federal law, a person is guilty of trespassing if the person is both:
    1. Present on any public or private land in this state.
    2. In violation of 8 United States Code section 1304(e) or 1306(a).
    B. In the enforcement of this section, the final determination of an alien’s immigration status shall be determined by either:
    1. A law enforcement officer who is authorized by the federal government to verify or ascertain an alien’s immigration status.
    2. A law enforcement officer or agency communicating with the United States Immigration and Customs Enforcement or the United States Border Protection pursuant to 8 United States Code section 1373(c).

    How can the final determination of immigration status be made by a law-enforcement officer when it is an element of a crime? Isn’t this for a jury?

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