Arizona, What to Do About Immigration Law?

Analysis: Put up a fence! Pathway to citizenship! The hackneyed immigration debate ignores bipartisan progress. Really.

US-Mexico Border fence
National Journal
June 28, 2012, 11:51 a.m.

OK, Ari­zona, you now have one-fourth of an im­mig­ra­tion law. What are you go­ing to do about it?

States that have passed laws sim­il­ar to Ari­zona’s — South Car­o­lina, Alabama, Utah, In­di­ana, and Geor­gia — are now on no­tice: En­force the law at your per­il. Moves in Wis­con­sin, Michigan, Pennsylvania, Ohio, and Illinois to fol­low Ari­zona may halt.

What the Su­preme Court left of Ari­zona’s S.B. 1070 is a pro­vi­sion al­low­ing state and loc­al law en­force­ment to re­quest doc­u­ment­a­tion if “reas­on­able sus­pi­cion ex­ists that the per­son is an ali­en and un­law­fully present.” Good luck. The high court prac­tic­ally in­vited mi­cro­scop­ic scru­tiny of fu­ture de­ten­tions.

But even if state and loc­al po­lice, in good faith, im­ple­ment this part of the law without re­sort­ing to pro­fil­ing, it will have min­im­al op­er­a­tion­al reach. To prop­erly check a per­son who might be an il­leg­al im­mig­rant, law en­force­ment must run the per­son through the fed­er­al Im­mig­ra­tion and Cus­toms En­force­ment data­base or call ICE to do it. Seni­or ad­min­is­tra­tion of­fi­cials say “con­cerns re­main” about a bliz­zard of field calls from Ari­zona to check sus­pec­ted ali­ens. But the Home­land Se­cur­ity De­part­ment has no plans to de­ploy ad­di­tion­al re­sources to its call cen­ters to handle new waves of doc­u­ment-check­ing calls. “Ari­zona won’t im­pose its im­mig­ra­tion pri­or­it­ies on the fed­er­al gov­ern­ment,” a seni­or of­fi­cial said. “The ad­min­is­tra­tion will ad­here to ex­ist­ing im­mig­ra­tion pri­or­it­ies.”

That doesn’t put Ari­zona back to square one. But it puts it close. The same can be said for states with copycat laws.

Where does that leave us?

With a firm, un­am­bigu­ous de­clar­a­tion that Con­gress and only Con­gress (with the pres­id­ent’s ap­prov­al) can change, im­prove, or oth­er­wise al­ter im­mig­ra­tion policy. Even when states as­sert, as Ari­zona did, that they are act­ing in con­cert with and in ad­vance­ment of un­der­ly­ing fed­er­al im­mig­ra­tion policies, the Court de­clared that the Con­sti­tu­tion’s su­prem­acy clause nul­li­fies all ad hoc state im­mig­ra­tion policy. “Con­gress has the power to pree­mpt state law,” the Court said. Un­til something re­places it, the 1986 Im­mig­ra­tion Re­form and Con­trol Act guides and leg­ally gov­erns fed­er­al im­mig­ra­tion policy, seal­ing off any state freel­an­cing. Un­til Con­gress re­writes that law, the na­tion’s broken im­mig­ra­tion sys­tem will re­main. Frus­trated state gov­ern­ments and the prim­al screams of voters in­censed by costs linked to il­leg­al im­mig­ra­tion such as vi­ol­ent crime, edu­ca­tion, and health care must now bank on a sty­mied Con­gress to act.

Sounds hope­less, right?

There’s an­oth­er story about im­mig­ra­tion policy that’s been largely over­looked. It’s the harden­ing bi­par­tis­an con­sensus around bor­der se­cur­ity. Dol­lars con­tin­ue to flow in this dir­ec­tion even amid con­spicu­ous belt-tight­en­ing.  

After Pres­id­ent George W. Bush’s at­tempt at com­pre­hens­ive im­mig­ra­tion re­form failed, Con­gress ad­op­ted a de­fault pre­sump­tion in fa­vor of spend­ing more every year on bor­der con­trol. From 2008 to 2012, Con­gress de­voted $17.8 bil­lion for U.S. Bor­der Patrol agents and equip­ment. From 2006 to 2012, the num­ber of Bor­der Patrol agents has in­creased 73 per­cent (from 12,350 agents to 21,370). The num­ber of agents as­signed to the na­tion’s South­w­est bor­der in­creased 67 per­cent (from 11,032 to 18,415).

The House Home­land Se­cur­ity spend­ing bill for fisc­al 2013 de­votes $11.7 bil­lion to Cus­toms and Bor­der Patrol, $77 mil­lion more than Pres­id­ent Obama re­ques­ted. It also pegs spend­ing for ICE at $5.8 bil­lion, a $142 mil­lion in­crease over Obama’s budget re­quest.

The na­tion now has more Bor­der Patrol agents and ICE de­ten­tion beds (34,000) than at any time in his­tory. For con­text, Bor­der Patrol ap­pre­hen­sions totaled 340,252 in fisc­al 2011. That’s down 53 per­cent from 2008 (due in part to the re­ces­sion and lack of avail­able work). But that num­ber of ap­pre­hen­sions was one-fifth the 2000 total.

Crim­in­al and non­crim­in­al de­port­a­tions are also up. Way up. This, too, is a bi­par­tis­an achieve­ment. The early Bush ad­min­is­tra­tion num­bers on de­port­a­tions were soft and soggy. But they got tough­er as il­leg­al im­mig­ra­tion in­creased and polit­ic­al clam­or arose. In 2002, the num­ber of total de­port­a­tions was 122,587. By 2008, it was 369,221.

The Obama ad­min­is­tra­tion kept up the heat. There were 396,906 de­port­a­tions in 2011, and with four months to go in fisc­al 2012, the num­ber is 269,278. With­in those num­bers is a deep­er story of Obama’s “pri­or­it­iz­a­tion” of de­port­a­tion policy. Crim­in­al de­port­a­tions are up sharply — from 114,415 in 2008 to 216,698 in 2011. Obama of­fi­cials con­tend they fo­cus re­sources on crim­in­als, not law-abid­ing ali­ens who try to con­trib­ute while liv­ing in the shad­ows. That may be a reach. This year’s crim­in­al de­port­a­tion num­bers are down — 138,505 with four months left in the fisc­al year. ICE in­siders say that’s be­cause some of the “crim­in­als” in pre­vi­ous years had traffic vi­ol­a­tions and oth­ers were driv­en back to the bor­der after be­ing caught, but were not sub­ject to im­mig­ra­tion court pro­ceed­ings.

Still, en­force­ment is far from lax. Ari­zona told the coun­try the na­tion’s im­mig­ra­tion sys­tem was dys­func­tion­al. The Su­preme Court ruled its rem­edy un­con­sti­tu­tion­al. On the sur­face, it ap­pears noth­ing works and all is lost. It isn’t. Slow, steady pro­gress is be­ing achieved on the biggest, most uni­fy­ing is­sue in this de­bate — se­cur­ity. The num­bers don’t lie.

This art­icle ap­peared in the Wed­nes­day, June 27, 2012 edi­tion of Na­tion­al Journ­al Daily.

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