Since the federal government filed a suit yesterday challenging Arizona’s immigration law, SB-1070, the right has remained overly confident that SB-1070 does not usurp federal authority as the Department of Justice contends. One of the most common arguments used to defend SB-1070 against the federal government’s preemption claim is that SB-1070 simply mirrors federal immigration law. In a piece written by the bill’s author in the National Review, Kris Kobach argues that SB-1070 “does not make any radical changes” and that it simply gives local police “a few additional tools.” He reiterated his position today on Fox News:
The federal government’s position that somehow Arizona is regulating immigration simply won’t fly because Arizona is not making any decisions about who’s legal or illegal — or decision about whom to deport or who to let into the country. Arizona is simply mirroring federal law and saying we want to help enforce federal law. We want our officers to cooperate with ICE. [...]
There’s complete consistency between the two laws. [...]
However, SB-1070 actually does depart from federal immigration law in a few rather radical ways:
SB-1070 requires local police to check the immigration status when there is “reasonable suspicion” that a person who has been stopped is undocumented.
And if legal residents suspect that local law enforcement is not enforcing SB-1070, they can individually clog the courts with lawsuits against police officers. Meanwhile, federal immigration law places no such mandatory demands on local police. Instead, if local police want to participate in the enforcement of immigration law, they can enter into a 287(g) agreement with Immigration and Customs Enforcement (ICE) which was established by the Illegal Immigration Reform and Immigrant Responsibility Act. The program provides local police with additional resources and training to enforce immigration laws. It’s far from perfect, but it’s hard to believe Congress would’ve even bothered establishing it if it were just assumed that local police have the inherent authority to enforce immigration laws.
SB-1070 criminalizes several aspects of immigration that are only considered civil violations under federal law and in some cases aren’t even illegal.
SB-1070 makes it a felony for anyone to knowingly transport or harbor an undocumented immigrant. However, federal law only prohibits the transportation and harboring of undocumented immigrants “in furtherance” of unlawful immigration. In other words, federal law narrows the scope of the violation to exclude entities such as clinics, churches, charities, and good samaritans who may just be trying to help out an undocumented immigrant in dire straits. SB-1070 also doesn’t just criminalize the act of working without proper authorization, it makes it illegal for someone to solicit work in a public space (such as a day laborer) regardless of that person’s immigration status and also states that its unlawful to “hire and pick up passengers for work.” Under federal law, it is not illegal to be a day laborer. Additionally, the act of working in the U.S. without documents was specifically not criminalized by Congress.
SB-1070 makes “attrition through enforcement” the law of the land.
The explicit intent of SB-1070 is probably one of the most conflicting aspects of the law. SB-1070 states that “attrition through enforcement [is] the public policy of all state and local government agencies in Arizona.” However, the federal government does not aim to squeeze out undocumented immigrants through overly draconian measures that cause them to self-deport. In fact, the DOJ notes that SB-1070 will create a situation in which the “federal government will be required to divert resources from its own, carefully considered enforcement priorities – dangerous aliens who pose a threat to national security and public safety – to address the work that Arizona will now create for it.” As broken as the U.S. immigration system is, it retains a degree of humanity that is utterly absent in SB-1070.