Why the Arizona Law is Much Worse than the Federal Law It is Supposedly Based On

Rich Lowry, Jonah Goldberg, and other defenders of the recent Arizona immigration law often justify it by arguing that it does nothing more than use state law enforcement agencies to enforce a federal law. As Goldberg puts it, “[l]egal immigrants have been required under federal law to carry their papers for generations.” Unfortunately, the state law is indeed much more dangerous than the federal one. And the latter is itself problematic.

I. Why the Arizona Law Poses a Much Greater Risk to Civil Liberties.

There is, however, a big difference between the federal law and the Arizona law: most people rarely if ever encounter federal law enforcement officials except at the border, while the same can’t be said for state and local police. My parents and I were green card holders from 1979 to 1986. As far as I know, they rarely if ever carried proof of legal residency with them except when entering and leaving the country. I suspect that most other legal immigrants behave the same way. Why? Because the chance of running into a federal law enforcement officer in everyday life is infinitesmally small. In practice, the federal law creates little if any risk of either racial profiling or the kind of “papers please” regime that critics of the Arizona law fear.

By contrast, even in my relatively low-crime neighborhood, I see state and local police officers almost every day. If, as the Arizona law allows, these officers can demand papers of anyone “reasonably suspected” of being an illegal immigrant, that will indeed create far worse risks than the federal law. Effectively, it means that anyone who looks Asian or Hispanic or speaks English with an accent is at risk of profiling (see this article for a good short explanation of why). It also means that such people will have to be very careful to carry documentary proof of citizenship or legal residency with them every time they leave the house. If they forget, they could end up spending hours or days in detention as the authorities sort things out.

To be sure, the law has been amended to require that police can only demand papers in case of a “lawful stop, detention, or arrest” of the suspect, which may be interpreted to mean that the person in question must first be stopped because of a suspicion that he is engaged in some other illegal activity. But this isn’t much protection. Police stop people all the time for minor traffic offenses, jaywalking and the like. This is particularly true in a time of recession when many local governments are stepping up enforcement of minor traffic violations in order to increase revenue. Even reasonably careful drivers and pedestrians can expect to get pulled over by police occasionally. In practice, just about everyone routinely drives above the speed limit or jaywalks. Most people engage in these or other minor violations of local and state law virtually every day. How many people usually drive under the speed limit? In practice, therefore, police armed with the authority of the Arizona law can find justification for stopping and demanding papers of almost anyone whom they think might potentially be an illegal alien; certainly anyone going anywhere in a car driving above the speed limit.

II. Why the Federal Law is Also Bad.

Defenders of the Arizona law often argue that you can’t consistently oppose it unless you oppose the federal law too. I think the above shows why that isn’t correct. However, I’m willing to take up their gauntlet anyway: the federal law is also harmful and should be repealed. The principal reason is that it creates a slippery slope that can then be exploited to justify much more serious intrusions on freedom such as the Arizona law. If not for the federal law, the Arizona statute might never have been enacted. Senior Conspirator Eugene Volokh’s excellent article on “The Mechanisms of the Slippery Slope” is relevant here.

In addition, it’s important to recognize that the federal law seems like it does not threaten freedom only because it is so rarely enforced except at border crossings. If encounters with federal law enforcement officials were as common as those with state and local police, the federal law would pose just as grave a danger as the Arizona law. Indeed, it would be far worse, since it would apply to the entire country and not just one state.

In sum, a “papers please” regime is dangerous whether created by federal law or state law. It may be tolerable if it is almost never enforced. But the best approach is to get rid of it entirely.