I was surprised by some of the reactions to my original blog piece, last week on Arizona's efforts to curb illegal immigration. Some even indicated they were surprised that the Huffington Post printed my article. Wow! Have we become that polarized?
From a constitutional law standpoint, let's try to tone down the rhetoric a bit. I concede that the Legislature and Governor of Arizona, in their desperation to stem illegal immigration from Mexico, may have overstepped the boundary of their authority under our constitution.
I have not forgotten Article 6, the "Supremacy Clause" of our Constitution. It states that:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. "
The 1956 U.S. Supreme Court case, Pennsylvania vs. Nelson, suggest that the Arizona legislation, making it a crime to be in the state without having obtained lawful entry into the U.S and authorizing State police to demand proof of citizenship for persons they had "reasonable suspicion" to believe were illegal aliens, may be"pre-empted" by existing federal law. "Preemption" can be either express or implied. Consequently, this means that any federal law, even a regulation or federal agency dealing with illegal immigration is supreme and preempts any conflicting State law.
This could be the basis of a successful legal challenge to the recently enacted Arizona law.
However, my original article was not about constitutional legality, but about sensible and rational public policy. From the various placards, signs and speeches protesting the Arizona legislation illegal immigration appears to be implicitly elevated as a worthwhile pursuit that all Arizonans and American citizens at large should compassionately understand and support. This is where I part company with so many of my friends on the "liberal left".
Current federal law mandates legal immigrants to carry proof of their residency status in the United States at all times. The issue of "racial profiling" would not arise as a matter of concern if persons who are likely to be the subject of such profiling had been not been able to enter the country illegally in the first place. Arizona, desperate to find a way to discover, identify and deport such persons has enacted a law that runs the risk of "racial profiling" the group of persons they seek to detect as suspect illegal immigrants.
That someone may have entered Arizona illegally "to get a job to feed their family", "to obtain medical care for their wife or child", or simply "in pursuit of a better life and educational opportunities for his family", are all worthwhile objectives. Many American citizens can compassionately understand such motivations. However humanistic their reasons may be to illegally enter into the United States, they do nothing to extinguish such illegality.
In various communities throughout our own country there have been heart wrenching instances where a father, out of desperation, has unsuccessfully attempted to rob a bank or a consumer products place of business because he had no money to feed his hungry children, pay his rent or pay his home mortgage. His act, while compassionately understandable, nevertheless is illegal. His conduct broke the law and put other innocent persons at risk. So it is with illegal immigration from Mexico "in search of a better life", "to earn money to send back to one's family," "to obtain medical care for a child or wife," and so on. They too are all are worthwhile objectives. But, entry into the United States in pursuit of such objectives is not merely "undocumented conduct;" it is an illegal breach of the United States border.
A naturalized citizen wrote a letter to the New York Times, published on Saturday May 1, 2010. The writer said,
As a naturalized citizen who waited five years to obtain a green card and then another four years to become a citizen (with all the expense and paperwork involved), I see no reason to condone illegal immigration.
If we, as American citizens, illegally entered Australia, Canada, Britain or any other country, we could hardly object to being asked for our papers, nor be surprised to be deported forthwith if we didn't have them. Has everyone lost sight of the meaning of the word "illegal"?
A repetitive theme of the placards carried by demonstrators this past weekend protesting Arizona's new law is "Legalization Now for All Illegal Immigrants". i.e., urging de facto amnesty for everyone in the country illegally.
I restate my original position: All of the protest is misdirected and at the wrong parties. Massive demonstrations should take place in front of the White House, Congress the Pentagon and the Embassy of Mexico in Washington demanding once and for all that our border with Mexico be closed, now; in lieu of immediate legalization of illegal immigrants. As Ross Douthat, columnist for the New York Times, wrote, "If you don't like what Arizona just did, the answer isn't to scream "fascist!" It's to demand that the federal government do its job, so that we can have the immigration system that both Americans and immigrants deserve."
And, now comes the irony or all ironies: The Government of Mexico has now issued an "advisory warning" to its citizens about the "risks" and potential "dangers" of traveling to Arizona. Hello! Did they ever issue such an "advisory warning" before the recent Arizona legislation about entering into Arizona or other parts of the United States as an illegal immigrant?
As an African-American I have experienced and witnessed racial discrimination and racial profiling. Now, however I perceive the establishment of a new race relations paradigm: a flawed immigration public policy becomes immune from criticism when such criticism challenges the effort to legitimize illegal immigration from Mexico. (9.5% current national unemployment and 18% or higher unemployment in many African-American and Hispanic communities.) Just where are additional jobs supposed to come from to enable our new illegal "legalized" immigrants to become self-sustaining tax paying members in our respective communities?
That most illegal immigrants or "undocumented" persons in Arizona are persons with various shades of brown skin, does not make challenges to their illegal immigration "racist". Often such charges of racism are invoked as a substitute for dispassionate analysis of the serious issue being confronted. Charges of racism directed toward those who want an end to illegal immigration is no substitute for immediate effective closing of our border with Mexico. Having said this, however, I do not challenge or dismiss the observation of Frank Rich in his recent Op Ed piece in this past Sunday's New York Times.
To be angry about illegal immigration is hardly tantamount to being a bigot. But the Arizona law expressing that anger is bigoted, and in a very particular way. The law dovetails seamlessly with the national "Take Back America" crusade that has attended the rise of Barack Obama and the accelerating demographic shift our first African-American president represents.
The crowd that wants Latinos to show their papers if there's a "reasonable suspicion" of illegality is often the same crowd still demanding that the president produce a document proving his own citizenship.
To the "Take Back America" right, the illegitimate Obama is Illegal Alien No.1".
Is this what a national discussion of our illegal immigration public policy is supposed to read and sound like in our newly acclaimed "post-racial America"? Is this indicative of what we have become, in this second decade of the 21st century, following our election of the first African-American as the 44th President of the United States? If so, to paraphrase Thomas Jefferson, I fear for my country when I reflect that God is Just.