The Justice Department's long-anticipated suit challenging Arizona's new immigration law raises a radical question: Is federalism dead? If so, we ought at least to have the integrity to declare it so in some more formal manner.
Arizona contends that it needs to act to preserve the health, education and welfare of its residents against a rising tide of violence associated with illegal immigration. It cites the drug war raging to its South in Mexico as a cartel locks horns with government to determine just who is in control. Arizona's law requires its lawmen to enforce federal immigration laws, giving local lawmen sweeping new powers to ask questions and detain folks whom they suspect are in Arizona, and therefore the United States, illegally.
Opponents of the law fear that it will yield racial and ethnic profiling. Arizona does not require lawmen to stop folks merely because they appear to be illegal immigrants, whatever that may mean, it merely permits officers to make inquiries about citizenship when folks are stopped for some other lawful purpose. The line between legitimate and pretextual stop is vanishingly thin, as criminal defense lawyers already know: there are so many laws governing so many areas of conduct that a lawmen can almost always find a reason to stop a person for questioning.
There is little doubt that Arizona's law will encourage profiling; it is a sort of low-grade ethnic cleansing measure designed to identify illegal aliens for expulsion from the county. Arizona's phobia about the dark and mysterious others crossing its borders in the dead of night is no different than the sort of line-drawing that led Hadrian to create his wall. History has a dull way of repeating itself, only appearing new and shocking to those transfixed by the moment. We fear the other.
What is new about this battle is the federal intervention to prevent the state from exercising its police power. On traditional federalism grounds, a state had the right, nay, even the responsibility, to assure that laws concerning the health, education and welfare of its citizens were assured. The so-called genius of federalism was its ability to regard the states as laboratories, each one free to address questions of public welfare in the manner it saw fit. In theory, the state with the best ideas would exert a sort of persuasive authority on the others. Good ideas would trickle to other states.
The federal government is one of limited powers, under classic federalist doctrines. The powers enjoyed by the federal government are limited to those enumerated by the Constitution. Those powers not delegated to the federal government by the states and people are retained, respectively, by the states and the people. That is what the forgotten Ninth Amendment states.
Federalism made great sense in an agrarian world in which it took weeks to travel from New York to Washington, D.C. But today the entire continent is within a day's reach by dint of air travel, and communication between and among residents of the various states, and the world, is instantaneous. Federalism looks more an more like an anachronism. What happens in Arizona doesn't stay in Arizona.
The Justice Department's suit contends that Arizona's new law tramples on traditional federal powers, the power to regulate our national borders. It then makes a rhetorical leap that is as stupid as it is dishonest: Arizona's immigration law diverts state resources from addressing the need to combat ordinary crime in the state; it also hampers the state's ability to combat terrorism. This is a shocking sort of federal paternalism: What Uncle Sam is saying is that if Arizona tries to enforce federal law, Arizona's people will be poorly served. Framing the question this way is as bold an assertion of federal power as can be imagined: The federal government is now regarding the state as a mere administrative unit within the federal scheme. By claiming to speak in the name of the people of Arizona the federal government is declaring federalism dead.
Perhaps it is time for all of us to reach that conclusion. If so, we should do so by way of constitutional amendment, not cockeyed litigation dreamed up by some nitwit in the Justice Department.
I had suspected the Justice Department to argue, as it does, that because federal law is the supreme law of the land, it preempts the field in what ever area it rightly occupies. This is traditional preemption doctrine and it might be sufficient for the purposes at hand. But, then again, it might not: Arizonans make a good case that the federal government cannot do the job of policing immigration in the lawless netherworld separating Arizona from Mexico. If Uncle Sam can't get it done, then Arizona, it would seem, has a right to do so. Futility is a defense against preemption,
This case presents many constitutional conundrums. One might result in a conclusion that no matter how well federalism served an agrarian nation tumbling into the twentieth century, federalism is now the outmoded. This litigation has the potential to be one of the most significant constitutional cases of the past 100 years.