Surely there is some irony and hypocrisy in the fact that, on the
day after a federal judge issued a preliminary injunction against
some provisions of the Arizona law that specified the enforcement
in the state of certain federal immigration laws, President Obama
signed into law yesterday the Tribal Law and Order Act. Why
irony? Why hypocrisy?
First let me observe, and correct me if I am wrong, that
state officers, including state judges, are sworn to uphold the
U.S. Constitution and all (all!) federal laws. If this were not
clear before the Civil War, it was made clear after the Civil
War. It is their duty. They need no grant from the federal
government. So, even without a state law in Arizona that commands
police within the state to enforce certain federal immigration
laws, and details how they must do so, they are obliged by their
oaths to do so.
Comes now President Obama, the Chief Executive Officer of
the United States, sworn to faithfully execute the federal laws,
who instructs Attorney General Holder to march into federal court
to seek an injunction against this new Arizona law and to
prohibit the enforcement of federal laws (bad enough by itself)
and compounds this violation of his oath by restraining police
officers from performing their sworn obligations. At the
President’s request, the federal court has carved out — from the
universe of the laws the police are sworn to uphold — particular
federal immigration laws. This is a reversal of the Civil Rights
Era in which the federal government mandated that the states
comply with federal law — and sent federal marshals and troops
to ensure that they did so.
The day after the judge’s ruling, President Obama signed
the Trial Law and Order Act. According to
reports, this law “will allow selected tribal police officers
to enforce federal laws on Indian lands…” I am not sufficiently
versed in Indian Law to know why tribal police officers, unlike
state officers, need to be specifically deputized to enforce
federal law. And, perhaps a reader can inform us whether this new
law defines the federal laws now enforceable by tribal police to
include immigration laws. Certainly a positive answer to this
question would highlight the contrast that exists now between the
authorities of tribal and Arizona police. For, whatever the
answer, tribal police have been granted the authority which has
been denied Arizona police.
But there is more. The report states that tribal police are
empowered to enforce federal laws “whether or not the offender is
Indian.” If there was any merit to the argument that the Arizona
law necessarily entailed racial profiling, is there not a great
risk of racial profiling when tribal police enforce the federal
laws against non-Indians on Indian Reservations? It is far easier
for tribal police to discern who does not belong on the
reservations they patrol than for Arizona police to discern who
does not belong in the United States.
So, do we not have the prospect of a person of Hispanic
ethnicity on a reservation in Arizona being lawfully stopped and
questioned by tribal police, while the same person standing
outside the reservation cannot be by Arizona police?
