Say 'Hell No' to Arizona

The state's near-fascist immigration law sanctions government intrusion that far exceeds any part of Obamacare—and may finally turn the tide of the debate.

Of the many things that make this country great, its largely positive attitude toward the concept of immigration, unique in the developed world, is right at the top. And the fact that even the frothiest “nativists” are themselves descended from immigrants imparts to their rancor a faintly absurd flavor. Which is not to say, of course, that nativist sentiment cannot be dangerous: Senate Bill 1070—Arizona’s remorselessly tough new law, designed to identify and prosecute illegal immigrants—is a case in point.

Arizona, it should be stressed, is paying its own price for our enforcement-only approach to illegal immigration.

There are an estimated 11 million illegal immigrants in this country, nearly half a million of whom are in Arizona. The overwhelmingly vast majority is law-abiding (except for their breach of the law that forbids them to be here), and tax-paying. Contrary to the rhetoric of the likes of Lou Dobbs or Pat Buchanan, they are drawn to America not by the lure of a welfare jackpot, but by a desire to work. Research has also shown— are you listening, Glenn Beck?—that illegal immigrants commit much less crime than homegrown Americans; and many of the illegal immigrants in prison are there for violations of immigration law, crimes of “status,” as it were, and not crimes of the conventionally antisocial variety. (On the subject of immigrants and crime, it is well worth reading a recent piece for Reason by Steve Chapman, of The Chicago Tribune.)

Meghan McCain: Hate the Law, Not ArizonansThe Arizona law empowers the police to stop a person if there is a “reasonable suspicion” that he is an illegal immigrant, and to detain him if he doesn’t have on him the documentation to prove that he has the right to be in America. (In effect, if you are a legal immigrant but on the streets without documentation, the onus will be on you to prove your legality.) Any likelihood that Governor Jan Brewer would veto the bill evaporated with the tragic murder of Robert Krentz, a rancher who most likely was killed by drug smugglers. His death unleashed a wave of political emotion that the governor wasn’t about to defy, even though Bill 1070 is—at least as a reaction to Krentz’s death—a forensic non sequitur.

And yet, paradoxically, some broader good may come of this Draconian, un-American, and very probably unconstitutional law. As Edward Alden, a senior fellow at the Council on Foreign Relations put it to me: Could it be that this unworkable law will make us understand, finally, the limitations of enforcement as the sole means by which we address illegal immigration?

Enforcement, by itself, is both insufficient and irrational. Immigration policy has to come to terms with the fact that there need to be more avenues for legal immigration, particularly for the low-skilled labor that crosses our southern border to meet a very real demand. Our lawmakers must come to terms, also, with the need for some kind of legalization program for many of those who are here illegally.

This last point will be opposed by critics who argue that this would be contrary to the rule of law, to which the correct response—apart from saying that the immigration laws in question are poor laws, erratically enforced—would be to point out that there are great practical and ethical difficulties in a hard-line rule-of-law position. (How do we round up so many millions of people? What of children who came here when very young, and who would now, years later, be cultural aliens in the lands of their birth?) We have to be more sophisticated, more creative, and less dogmatic, especially when we recognize that we are dealing with industrious, law-abiding, tax-paying, God-fearing, family-oriented people. In other words, model citizens—except for the fact that they are not citizens.

Arizona, it should be stressed, is paying its own price for our enforcement-only approach to illegal immigration. The fences, barriers, and enhanced vigilance on the Texas and California borders with Mexico have channeled illegal immigration toward the hard-to-invigilate desert of Arizona. The state is, in effect, a victim of our enforcement-only approach.

But its legislative reaction is overwrought, and bordering on the fascist. It permits government intrusion into an individual’s domain that far exceeds the Big Brotherness of any part of Obamacare. Although the governor has gone to great lengths to stress that racial profiling by the police would not be tolerated, it is difficult to grasp how the “reasonable suspicion” of illegal immigration status will play out in a racially neutral, or nonracial, way, given that the precise sources of illegal immigrants are the countries to the south of Arizona. Inevitably, the law will drive out many Latinos, legal and illegal, from Arizona. If this does not bother its backers, then charges of racism become hard to refute.

Ultimately, it is hard to see how the law would survive a Fourth Amendment challenge to its constitutionality, or one based on the argument that the regulation of immigration is in the federal—not state—domain. The law’s backers must know this. Yet in pushing forward with it regardless, their aim, clearly, was to make a national statement. It is a statement to which the response of all right-thinking, freedom-loving Americans must be uncompromising: It’s time for us to say, not “no,” but “hell no.”

Tunku Varadarajan is a national affairs correspondent and writer at large for The Daily Beast. He is also a research fellow at Stanford’s Hoover Institution and a professor at NYU’s Stern Business School. He is a former assistant managing editor at The Wall Street Journal. (Follow him on Twitter here.)