The Feds, Immigration, And SB 1070

One of the more common refrains on the right in defense of restrictive immigration laws is that the federal government has "failed" to address the problem, so it only makes sense that the states are taking matters into their own hands. Ilya Shapiro, who defends the constitutionality of SB 1070 but argues that its bad policy, offers a version of this argument:

And yet most people agree on the types of problems we face from this dysfunctional situation:

ten to twelve million illegal aliens living in the law’s shadow;

scientists/engineers/researchers/businessmen who have no path to a green card and citizenship (and often not even a path to a work visa);

employers unable to find legal and reliable manual laborers despite high rates of unemployment; and

border states and counties facing a disproportionate burden relating to the provision of social services and law enforcement.

And most people would also agree on the broad-brush solutions those problems require:

greatly expand legal opportunities for temporary and permanent residence;

streamline work and residence permits, including giving those already here a sort of temporary parole that puts them on a path to residency as long as they pay taxes, avoid criminal convictions, etc.; and

redirect resources from enforcing the current restrictionist policies towards securing the border against terrorists and going after those who break criminal laws.

But Congress, for various political reasons that – unlike in many other policy areas – cut across party lines, has been unable to fix anything. Regardless of the party in power and whether the president has spent his own political capital to push immigration reform (Bush) or not (Obama), nothing has been done. Not surprisingly, this de facto benign neglect has not been a winning strategy.

As a defense of the existence of SB 1070, this strikes me as particularly weak. For one thing, SB 1070 is entirely geared towards "attrition through enforcement," and contrary to the conventional wisdom on the right, enforcement is the one thing the federal government has zealously pursued. The Obama administration is deporting people in record numbers, through secure communities it has mandated that local law enforcement forward the biometric information of anyone arrested to Immigration and Customs Enforcement. Congress has thrown money, people and drones at the border. The people who have been deported or lost family members to removal would likely not characterize this as "benign neglect."

All of which is to say that the extent to which the federal government has "failed," it's in all the areas that Arizona's law either doesn't address or actively makes worse. The area in which the federal government has been most active is the one Arizona focuses on. So it's really not plausible to me to posit SB 1070 as an answer to the failure of the federal government to act on immigration reform, unless Shapiro is just referring to kind of immigration reform that is the last thing most Arizona lawmakers would want. If that's the case then he'd be right, and while obviously Shapiro is no restrictionist, usually when the right refers to the failure of the federal government on immigration reform it means a failure to run 11 million people out of the country. As far as the feds are concerned, it's not really from lack of trying. 

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