Wednesday, April 28, 2010

Arizona's Frustration, or, What's a State to do?

Lots of commentary in the blogosphere on the recent Arizon immigration law. Jonathan Adler collects some sources and adds his two cents. One of the most interesting issues, from a constitutional law perspective, is whether the Arizon law preempts federal jurisdiction in the immigration area. Adler quotes Jack Balkin, who writes:
"There is a much stronger argument that the new Arizona law, while purporting to be helpful, actually sticks a thumb in the eye of the federal government by engaging in draconian measures. The Arizona legislature appears to be saying, in effect: “since you won’t police the borders, we will, and if you don’t like it, pass some new legislation.” If this is the point of the new Arizona law, then the law isn’t really an attempt at cooperation but an attempt at provocation and one-upmanship, and the chances that it is preempted increase".
I tend to agree with Balkin here, but that's not my point. I'm going to argue that one could make an argument that even if the Arizona law is ultimately struck down, there could, potentially, be some value with Arizona going ahead and enacting this law, even if it knew it would be invalidated. Just so I'm clear, what I mean is that there is some value in this expression of frustration or anger, independent of any substantive value the law might have (which I doubt it has, especially the part about a police officer being able to arrest anyone based on a "reasonable suspicion" that they're in the US illegaly).
Let's assume you're Arizona. Granted, it's difficult to think of oneself as a state, but this is a hypo, so just go along with me here. Now, you're a border state, and a lot of people choose to access the U.S. through your part of the border. You also think that the influx of immigration is harmful, let's say because you think it raises the level of violent incidents in the state, or because you believe that unregulated immigration has adverse effects on the local economy. In a world where immigration is controlled by the federal government, what is a state to do?
One option would be to use its representatives in Congress to pass immigration reform laws. This, however, is very difficult. One of Arizona's arguments is that it is in a unique geographical location, and thus other states might not share its concerns. Besides, Arizona is a relatively small state which means it has less clout in the House of Representatives.
Another option would be to harness the state and local political branches to lobby the federal government. This might work, but for similar reasons as option one it is very unlikely. Immigration reform is politically contentious, and it's hard to see any reform pass before the 2010 congressional elections, if that.
Option number three would be to apply indirect political pressure on the federal government through civic mobilization. This is an attractive option. It rings of democratic pedigree (grassroots activism looks good). But, the problem here is that it's going to be really hard to have a lot of people coalesce around this issue. Frankly, I suspect that most Americans do not place immigration reform high on their list of concerns.
So, what's a state to do? Arizona's answer? Pass something radical that has a very good chance of being struck down. What, you may ask, does Arizona get out of that? Well, it gives option number 3 (and 1 and 2) a serious boost. If nothing else, the political saliency of immigration reform has increased due to Arizona's law. People have started talking more about immigration, the bloggers are writing about it, as is the mainstream media, in a way that did not exist prior to the passage of the law. True, this may all die down in a few days, when a new issue becomes the topic du jour. The trick, then, would be to figure out how to keep the momentum going, which is another question altogether.
My point is, Arizona's law might be a good law or a bad law (for what it's worth, Arizona's police chiefs opposed the new law, claiming it would take away from their effectiveness at law enforcement. The Arizona police does not want to be portrayed as immigration (deportation) officers, and rightfully so). However, there can be benefits, as well as drawbacks, to its choice of strategy. This is perhaps the least analyzed part about the whole thing.


  1. Interesting post Adam. I wonder if, for the purposes of your argument, it makes any difference whether "Arizona's" objective was actually to get this law struck down and give "option number 3 (and 1 and 2) a serious boost". That is, what if this was not a strategy to get attention to immigration issues but lawmakers actually thought the law was a good idea and do not want it to be struck down?

  2. Right. I actually tend to believe that Arizona legislators acted in good faith here, in the sense that they actually want the law to remain. I think, however, that my argument would still hold, because the question is not only what the legislators subjectively want, but also what is going to happen as a matter of empirical reality even if the law is struck down.

  3. Nice post Adam. I think I agree with you that its more likely that Arizona wanted to rattle the federal govt into doing something. FYI, they just issued new amendments to the law (,0,2712336.story)

    I have a minor question though - why do you think this is an issue that most Americans do not care about? I doubt there will be any reforms passed before the midterm elections but in Florida at least, another frontier state when it comes to immigration, this is a key issue for the fight over the governorship.

  4. Thanks Anna. Let me be a little clearer. I don't think this is an issue that Americans don't care about at all. I think it's an issue that is not high on the list of concerns. Where it is high, as you correctly point out, is in states which deal with immigration specific issues like Arizona and Florida.
    Interestingly, the Arizona law got a lot of attention (As I predicted in my post). Gallup polls show that over 75% of Americans have heard of it, and 51% approve of it, while only 39% oppose it. Other polls show that only 24% of Dems think immigration should be Congress's highest priority, vs. 41% of republicans. I tried to find a polls listing what Americans are concerned about generally, but couldn't find one on Gallup's site.


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