One of the most intriguing takes on the administration’s suit against the state of Arizona: it is an administration power grab that, if successful, would put Congress in the position of being merely the executive branch’s advisory board. Rich Lowry advances this disturbing idea:

 The drafters of the Arizona statute, S.B. 1070, were careful to mimic specific federal laws, but that’s not good enough. The state’s law would pass constitutional muster only if it tracked exactly with the executive’s enforcement priorities….


In other words, such mandatory enforcement of the law conflicts with the executive’s discretionary enforcement of the law. If Arizona’s statute is in keeping with the letter of the laws as passed by Congress, so what? The executive can selectively pick and choose which elements of those laws to honor, and then on that basis quash state statues even if they mirror the handiwork of Congress.

It’s as if Congress is merely an advisory body in this area, and the administration wants to lift the power over immigration policy out of Article 1 of the Constitution and deposit it in Article 2. The administration is forced into this sweeping argument out of its desperation to overturn the Arizona law and its limited grounds to do so on any common-sense basis.


Where is this going? In refusing to enforce the nation’s immigration law, the very law Arizona says it’s trying to uphold and assist, the administration’s position is arguably tantamount to making illegals legal because the feds have decided against enforcing the law. In effect, the administration, if Lowry is correct, it attempting to change immigration policy, using a very subtle tactic, skirting involvement of Congress.