Immigration Ruling Half-Right, But Crucially Half-Wrong

From The CATO Institute:


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Immigration Law Ruling Half-Right But Crucially Wrong

Posted by Ilya Shapiro



The ruling demonstrates the problems the federal government creates when it fails to either enforce or reform our immigration laws. Judge Bolton’s hyper-technical decision — anybody who tells you this case was black-and-white isn’t a serious lawyer — got it half-right: She correctly upheld most of SB 1070 and correctly struck down two sections of SB 1070 (a small part of section 5 and all of section 6), but incorrectly struck down two other sections (2 and 3).



One of the latter, section 2 — requiring police to determine the immigration status of persons they stop, detain, or arrest if they have a reasonable suspicion that said persons are unlawfully in the United States — is the most controversial part of SB 1070 and also the most controversial part of the ruling. Judge Bolton construed section 2 as conflicting with federal law because it burdens federal resources and impedes federal agency functions, but how can it do that when the resources and agency functions in question are already (supposed to be) devoted to immigration enforcement? The government’s decision not to enforce its own laws can’t possibly preempt a state law that merely mirrors those laws — laws the federal the government is charged with enforcing.



SB 1070 is a valiant attempt to deal with the breakdown in the rule of law caused by so many people living in the legal shadows. While it’s not the best public policy — because it diverts law enforcement resources, divides police from their communities, burdens lawful residents, and ultimately harms the economy — it’s a frustrated citizenry’s perfectly understandable response to government failure. Probably the best thing to come out of this whole episode — which isn’t over by any stretch — is that it thrusts the debate over comprehensive immigration reform into the forefront of national political debates. This is a tough and nuanced issue that will end up in the Supreme Court again and again if Congress neglects to act.



Ilya Shapiro • July 28, 2010 @ 8:31 pm