Andrew McCarthy and Heather Mac Donald both support the blocked Arizona immigration law, but they differ over some of the niceties. It’s an interesting discussion, taking place on the newly-revamped The Corner.
Some of the discussion is arcane-McCarthy disagrees with Mac Donald’s suggestion that Section 3 of the law is “potentially” unconstitutional. McCarthy challenges this idea in a lengthy post on preemption (which is the key issue in determining the constitutionality of the law-does it preempt the authority of the federal government?). I have a hunch that Mac Donald will reply.
Meanwhile, an interesting point that is not difficult is McCarthy’s idea that the administration is trying to make something essentially political appear a legal issue:
Federal law is (and is supposed to be) very limited in what it can prevent a sovereign state from doing. Beyond those narrow limitations, the state has discretion to govern itself as its citizens see fit. Similarly, the federal executive branch is vested with vast powers but finite resources, and it has discretion over how it will husband the latter. When a state’s lawful discretionary action conflicts with the president’s lawful discretionary decision not to enforce a congressional statute, that is not a legal issue. It is a political issue.
In such a situation, the job of the federal courts is to stay out of it. Then, in the court of public opinion, Arizona gets to demonstrate why illegal immigration is a huge problem, and the Obama administration can try to defend the de facto amnesty it seeks to confer on the illegal immigrant population. Indeed, it is only when the law throws back its veil and politics is allowed to operate, that we actually get to see that de facto amnesty is the president’s objective. That’s why the administration and its Justice Department want you to think of this as a legal case – if it’s politics, they lose … big.
As I predicted, Mac Donald would respond–and she has–and it is a model of sweet reason and civility:
I had wondered whether S.B. 1070 could in fact pose a constitutional problem in the following situation: Arizona law-enforcement officials inquire with ICE whether someone they have stopped is in the country illegally. ICE answers in the affirmative, but tells the Arizona officials that it is not interested in prosecuting or deporting that particular alien – in essence, telling Arizona to let him go. Nevertheless, Arizona fines or incarcerates the illegal alien for violating the new state-law version of the federal alien-registration law (which requires aliens to carry their immigration papers). In such a case, I speculated, perhaps Arizona’s decision to penalize the alien conflicts with, and is thus preempted by, federal authority over immigration matters.
Andy vigorously responded that preemption doctrine applies to Congressional laws, not to the executive enforcement of those laws. Since nothing in the federal statutory scheme regarding immigration conflicts with S.B. 1070 – or with Arizona’s decision to enforce S.B. 1070’s alien-registration section – such enforcement on Arizona’s part is not preempted by federal law.
If I am reading Andy correctly, he seems to draw a bright line between a law and its execution; I am not sure that I agree. …
Still Hot After All These Years: Just because we seem to be talking so much about the Constitution lately, I want to plug a great new website: Constituting America. Its founders and co-chairs are Janine Turner and Cathy Gillespie, and in addition to oldies but goodies (that would be our Founding Documents), it contains essays on constitutional issues by Turner and Gillespie. Think of them as Federalists 2.0!