The Obama Watch

Is Arizona’s Immigration Law Being Put on ICE?

What was that about faithfully executing the laws of the United States?

By 5.25.10

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For all the histrionics, hoopla and hysteria that has surrounded Arizona's recently passed immigration enforcement law, it must be noted that its success depends on the co-operation of the federal government and the feds know it.

How else to explain the words of John Morton, Assistant Secretary of State for Homeland Security for U.S. Immigration and Customs Enforcement (ICE)? Last week, Morton told the Chicago Tribune, "I don't think the Arizona law, or laws like it, are the solution." Morton added that he wasn't of the opinion that the Arizona law represented "good government." So it would appear the federal government will not co-operate with Arizona's efforts to stem the tide of illegal immigration. For all intents and purposes, Morton has put Arizona's immigration law on ICE.

Yet the provision in the Arizona statute concerning the enforcement of immigration law can be summarized in three simple steps.

Step One -- A law enforcement official has made a lawful stop, detention or arrest of an individual.

Step Two -- A law enforcement official has developed a reasonable suspicion the individual is not in this country legally (i.e. failure to produce identification).

Step Three -- On the basis of this reasonable suspicion, a law enforcement official contacts ICE to verify the individual's immigration status.

If Eric Holder and Janet Napolitano had bothered to read the Arizona immigration law they would have stumbled on the part which states:

The person's immigration status shall be verified with the federal government pursuant to 8 United States Code Section 1373(c).

And what exactly does 8 U.S. Code Section 1373(c) read? Well, read it!!! Don't just glance at it:

(c) Obligation to respond to inquiries

The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

Simply put, if an individual is deported as a result of the Arizona law it is a decision that would ultimately be rendered by ICE in accordance with federal law, not by a law enforcement official in Arizona. And the federal government knows it all too well. Kris Kobach, who helped draft Arizona's immigration law and is currently seeking the office of Secretary of State for Kansas, recently told the Fox News Channel, "The federal government has a 24-7 hotline that's been in place for about 15 years for exactly that purpose. And it's being used more than a thousand times a day all over the country."

Indeed, ICE advertises the hotline on its website. The number is 1-866-DHS-2-ICE and is located in Vermont of all places. Directly above the telephone number in large, friendly letters it reads, "Report suspicious activity." In fact, this phrase also appears next to the contact information for both Secretary Napolitano and Assistant Secretary Morton. So why then is it acceptable for the federal government to ask law enforcement officials around the country to report suspicious activity concerning an individual's immigration status but not acceptable for a law enforcement official in Arizona to have a "reasonable suspicion" an individual might be an illegal immigrant?

For years now Arizona has been at the mercy of the federal government for its largely insufficient efforts to secure the Mexican border. Even with the passage of this law Arizona is still at its mercy. If ICE (with blessings from the White House) makes a concerted effort to ignore requests from Arizona law enforcement officials to determine an individual's immigration status they will have effectively neutralized Arizona's efforts to enforce immigration law. Inaction on the part of ICE would put Arizona right back to where it is now and very possibly in a far worse state of affairs.

Consequently, ICE would also be breaching federal law. The law states the federal government "shall respond to an inquiry by a Federal, State, or local government agency" be they in Arizona or anywhere else in the United States of America. The law does not read that the federal government "shall respond to an inquiry by a Federal, State or local agency except if said agency is based in the State of Arizona." But by all appearances it might very well be what the Obama Administration wants.

Last month, during a citizenship ceremony in the Rose Garden, President Obama characterized Arizona's efforts as those which "threatened to undermine basic notions of fairness that we cherish as Americans." But how can that be when the Arizona law is guided by federal immigration law? One must then wonder if the Obama Administration objects to federal immigration law as well. Do they believe federal immigration law is a breach of "good government"? If they do then they ought to say so. Yet somehow I think they might need a little prodding.

The next time President Obama criticizes Arizona's immigration law he ought to be asked how a phone call placed by a police officer in Scottsdale to ICE undermines basic notions of fairness we cherish as Americans.

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About the Author
Aaron Goldstein writes from Boston, Massachusetts.