Published: July 3, 2012

To address the various issues presented by the hundreds of thousands of undocumented individuals living in their state, including the security of their state’s border with Mexico and the drain on state coffers, the State of Arizona took the extraordinary step of enacting a state law criminalizing violations of U.S. immigration law. Specifically, the Arizona law was designed to empower state law enforcement agencies with the authority to arrest and criminally prosecute immigration law violators present in their state, with violators turned over to federal authorities for the initiation of removal proceedings after serving a state sentence. Violators of this law however, were to only become subject to arrest and prosecution if the law enforcement officer has a “reasonable suspicion” that the suspect is living in the U.S. in violation of immigration law. On June 25, 2012, the U.S. Supreme Court, in a split decision, weighed in, declaring most of the law as unconstitutional, as it would enable the State of Arizona to intrude on authority the US Constitution specifically and exclusively delegates to the federal government.

The Supreme Court majority, in arriving at its decision to strike down most of the provisions, declared that the law flies in the face of the explicit constitutional prohibition against states acting in realms where the federal government has sole jurisdiction, such as immigration policy and border control. According to the decision, Arizona may not prosecute a violator of U.S. immigration law in a state criminal court, since a) U.S. immigration laws are almost entirely civil in nature (and not criminal laws) and b) are to be enforced solely within a federal law enforcement context. Left in place however, is one of the law’s most controversial features – the section some call the “show me your papers” provision, requiring local law enforcement personnel to inquire into a person’s immigration status if the official suspects the person is in the country illegally.

The Supreme Court’s decision can be seen as just one more percolating event as our society continues on the path of addressing, or perhaps not addressing, the reality of having 12 million living in the U.S. without legal immigration status. Other percolating events include President Obama announcing an executive “Dream Act” type initiative to allow certain young adults who were brought to the U.S. while under the age of 16, to live in the U.S. legally and with employment authorization for at least a 2 year period. The percolating big picture of course also features opposing voices in the conversation, including various prominent politicians, and even Supreme Court Justice Antonin Scalia, who accuse President Obama of failing to enforce current U.S. immigration laws and of exercising powers not within his authority by implementing this new Dream Act type program.

As stated previously in this column, the importance of Arizonians’ concerns with regard to crime, border enforcement, and the use of its financial and natural resources should not be minimized. However, the answer lies not in draconian, desperate state action, but solutions that will come from our U.S. Congress and President. Hopefully, strong Congressional and Presidential leadership will prevail, with the American public being reminded that it was former President George W. Bush, along with John McCain and legions of other Republicans who most recently championed legislation to strengthen U.S. borders AND enact comprehensive immigration reform – with a path to U.S. citizenship for most of our country’s undocumented population. Unfortunately, now that it is President Obama, and legions of Democrats who are championing this dual initiative, there are conveniently only a handful of Republicans supporting the cause, with most Republicans speaking to American voters’ fears, anger, and resentment. And of course, let’s not forget that when it comes to immigration law enforcement, contrary to what many vocal Republicans would today have us believe; it is President Obama who has been enforcing U.S. immigration law like no other President in recent history.

In realistically assessing the options available to address the question of what to do with our society’s undocumented population, one can be sure the option of initiating removal proceedings against 12 million individuals is in no way financially, logistically, or even emotionally realistic. Rather, the option advocated by President Obama, and previously advocated by President George W. Bush and presidential contender John McCain, featuring enhanced border enforcement and legalization of the undocumented is the sensible approach and one superior to mass deportations or the status quo. But for this realistic, common sense answer to have a chance, we will need two important ingredients: 1) honest and gutsy presentations by politicians and 2) a clear thinking, and practical, public. That seems like a long shot these days.

Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois