Federal Lawsuit Against Arizona Is Politics, Not Law

By Ric Oberlink
July 8, 2010

I formerly thought that the primary qualification necessary for serving in President Obama’s Cabinet was a refusal to pay taxes. Treasury Secretary Geithner—the most notorious of a string of tax scoundrels—cheated on his income taxes for four consecutive years.

It now appears that there is an equally important criterion for Cabinet positions—an inability or refusal to read the law, especially if that law concerns the relevant Department, and especially if the Cabinet member criticizes the law.

Homeland Security Secretary Janet Napolitano said she would have vetoed the new Arizona immigration law, pronounced it “a shame,” and then admitted she had not read it. Attorney General Eric Holder said that the Justice Department was considering a federal lawsuit against the law, and then admitted he had not read it. Perhaps he actually read it prior to filing suit against Arizona.

Of course, those criticisms are tepid compared to some of the more bizarre accusations. Cardinal Roger Mahony—the moral arbiter best known for his efforts at covering up the rapes of altar boys—accused Arizona of “reverting to German Nazi and Russian Communist techniques.”

The provisions that have drawn the most attention and vituperation are those requiring aliens to carry identification with them and authorizing police officers to stop those whom they have a “reasonable suspicion” of being in the country illegally. Since both the Attorney General and DHS Secretary cannot be troubled to read the law, allow me to explain it to them.

Under current law, foreigners in this country must carry identification with them, and law enforcement officers are able to ask the status of anyone whom they have a reasonable suspicion of being in this country illegally. If the Arizona law takes effect, foreigners in this country must carry identification with them, and law enforcement officers will be able to ask the status of anyone whom they have a reasonable suspicion of being in this country illegally. Do you see the difference?

The difference is that the decades-old standards of federal law will now be part of state law. Aliens have been required to carry identification for over half a century. In fact, the Arizona law imposes no new requirement; it simply authorizes state officers to determine “whether the person is in compliance with the federal registration laws.”

While the term “reasonable suspicion” may sound like an arbitrary, contrived phrase to the uninitiated, it is a term familiar to any first-year law student—even if it perplexes Attorney General Holder. Reasonable suspicion to detain a suspect is something police use on a daily basis, and the Supreme Court adopted it as the appropriate legal standard in 1968 in Terry v. Ohio.

The reasonable suspicion standard applies to illegal immigration just as it applies to other illegal acts, and there is a plethora of court cases reviewing the actions of law enforcement officers. In U.S. v. Brignoni-Ponce, the Supreme Court ruled that officers could not stop a car just because its occupants appeared to be of Mexican descent, but “any number of factors may be taken into account in deciding whether there is reasonable suspicion to stop a car….”

Since the Arizona law merely incorporates federal standards, one might reasonably expect that entities that have announced a boycott of the state—such as Los Angeles, San Francisco, and San Diego—will also boycott the federal government and refuse to accept any federal funds… but do not hold your breath. Arizona’s critics do not really want enforcement of immigration laws. Since it is difficult to convince a beleaguered public that local officers should not enforce the law, especially when the federal government has failed miserably in its obligation to do so, it is easier to rant about racial profiling.

Alas, for Arizona’s detractors, American citizens are not so easily fooled. They realize that it makes no more sense to ignore violation of our laws against illegal immigration because of spurious charges of racial profiling than it does to ignore violation of our laws against rape because of spurious charges of gender profiling. In spite of all the outlandish invective, the Associated Press poll found almost twice as many people support the Arizona law as oppose it.

Ric Oberlink, J.D., is a Senior Writing Fellow for Californians for Population Stabilization (CAPS) and can be reached at [email protected].