Kobach's Defense of SB1070

I have had a bunch of people send me this article defending Arizona's SB1070, our now infamous immigration law.  A couple of responses:

1.  I have never been wildly worked up by SB1070 after it  was amended a week or so after its initial passage.  I have used the debate around SB1070 to reiterate my case, particularly to Conservatives, for more open immigration.  Our immigration laws are prohibition redux, though in this case we are messing with people's desire to work rather than drink.  As such, the laws to enforce the prohibition are less important to me than the fact of prohibition itself.   IOur immigration laws are an incredible restriction on commerce, free labor markets, and even private property (SB1070 redefines trespassing as not having the government's, rather than the private owner's, permission to be on a piece of property), and this is true with our without SB1070.

I would likely have dropped SB1070 coverage a while ago had it not been for the rhetoric that is used by SB1070 supporters.  When our governor is saying that the majority of Arizona's 500,000 illegal immigrants are all drug mules, that none of them are really looking for honest work, and that all they do is cause crime up to and including beheadings in the desert, I get angry to hear the same stupid arguments that many of our grandparents heard about their ethnic groups (though the beheading thing seems to lack historical precedent).  (more on the immigration non-crime wave here).

2.  The language of SB1070 has never matched the arguments supporting it.  SB1070 mainly gives the police power to be more intrusive at certain traffic stops and harass day labor centers.  What in the heck does this have anything to do with drug cartels and armed paramilitary gangs on the border?  If, as our governor says, illegal immigrants are not really looking for legitimate work, then why is most of our enforcement via employers offering legitimate work?

3.  When Kris Kobach says "In four different sections, the law reiterates that a law-enforcement official 'may not consider race, color, or national origin' in making any stops or determining an alien's immigration status," he is ignoring reality.  The law asks police to make a determination (e.g. probable cause that one is an illegal immigrant) that is impossible for actual human beings to make without such profiling.  It's like passing a law that says "police must drive their cars 30 miles a day but can't drive their cars to do so."  The reality on the ground here in Arizona is that, illegal or not, Sheriff Joe Arpaio has been using racial profiling to make arrest sweeps for years, and his officers have become masters at finding some pretext to pull over a Mexican they want to check out  (e.g. the broken tail light).   Words in this law about racial profiling are not going to change anything.

4.  Kobach makes much of the  revision of the law, post-passage, to narrow the circumstances under which police can stop and check for immigration status

But Section 2 of S.B. 1070 stipulates that in order for its provisions to apply, a law-enforcement officer must first make a "lawful stop, detention, or arrest . . . in the enforcement of any other law or ordinance of a county, city or town or this state."

The original wording made reference to "lawful contact"; this was revised to "lawful stop, detention, or arrest" to make clear that officers could not stop someone simply on suspicion and ask for his papers.

There are folks, including most in the Obama administration, that are still criticizing the original "lawful contact" language and need to catch up.  However, this seems a thin branch for Kobach to stand on in lashing out at the law's critics.  Because in fact this over-broad language did pass and get signed into law, and only the immediate and vociferous public backlash against the language caused it to be changed.  Kobach acts like it was changed based of some internal discussion or discovery of error, but in fact "lawful contact" was how Kobach himself helped write the law and wanted it to read, and was supporters like himself were forced to change it only after a lot of vocal opposition.  Its disingenuous to use the modified language as defense against critics when it was only due to the critics that the modified language was inserted.

At this point, I am done criticizing SB1070.  It is not a great law but it is not particularly worse, in its current form, than laws in some other states or federal law.  I don't really anticipate that it will get struck down by the Supreme Court, though its enforcement may be enjoined through the hearing process.

However, I am not done criticizing our prohibitionist immigration regime nor am I done calling out those on the eliminationist side of the debate, like Jan Brewer, who are starting to show their true stripes as the debate proceeds.  I know some of you are tired of it and to some disagree with me, such that I have lost about half my readers over this.  But this debate has been an eye-opener to me.

For years I have taken many of the AZ politicians at their word that they had no problem with Mexicans per se but were concerned with the load on social services and other government budgets.  I understand how the intersection of immigration and the welfare state causes problems, and have proposed solutions to deal with them.  I am willing to have a friendly agree-to-disagree discussion with such folks.  But when our leaders are talking about 500,000 drug mules and mysterious beheadings and crime waves that somehow exist in a state with rapidly falling crime rates, its clear to me something more insidious is driving some of the folks in the debate.

  • http://cigarsandpolitics.us Aaron

    Found your blog a few months ago from a link from Mark Perry or Don Boudreaux and really enjoy it. Are you saying that their are legitimate immigration issues(border security)but this law doesn't address those specific issues? How can you solve border security and still give someone a chance to come here and make a better way? I would fully support open immigration as long as we can protect ourselves from the violence of the drug cartels. Shouldn't there be some sort of system for that immigration? How do the people that come here assimilate so they have something to look forward to that is better than the lowest paying work? Do you think there is some political motivation behind the Arizona law to force the federal government to step up?

  • Che is dead

    ...our now infamous immigration law

    SB1070 has the broad and overwhelming support of, not just the people of AZ, but the entire nation. The only thing "infamous" about the bill is the depths to which it's critics have stooped to mischaracterize it and to slander those who support it.

    You cannot be an advocate and defender of the "rule of law" and a supporter of illegal immigration.

  • LoneSnark

    I fully support any battle against prohibition. I am sorry to hear that you have lost readers over an issue I agree with you on. But the arguments must be made for the good of humanity, and I trust your readership is not too high a price. They'll come back after this issue dies down, and hopefully then they will appreciate your moral consistency when you come to the defense on issues where they do care about liberty.

  • greg

    Che,
    Popularity of a law is no indication of it's constitutionality (or it's "rightness"). As such, just because the majority of people decided to pass this law does not mean we have to stop criticizing it.

    I think most everyone could find some laws they feel were passed in error and should therefore be revoked.

    Aaron, I think you have a good point about the political motivation. I have to agree this is an issue that SHOULD be handled by the feds (in some way....I'd propose greatly expanding legal immigration avenues). Either way, I don't doubt that this is a way to force the feds hand.

  • randy

    So, Che, the "rule of law" means that every legislated rule must be followed and is just? I always kinda thought the "rule of law" was to constrain the government, not peaceful people.

  • randy

    Some would say that under the "rule of law" the government has no authority to stop peaceful people from crossing the border.

    Here is an paper by M. Huemer:

    http://home.sprynet.com/~owl1/Immigration.pdf

  • Henry Bowman

    William Grigg's description of the situation in Arizona, if correct, would lead one to believe that the Arizona law is mostly designed to assist politicians who needed a boost in the polls. He points out the enormous resources that go into propping up the price of drugs, which of course mostly benefits those in the drug cartel who manage to remain alive for a few more years.

  • Bill Beyer

    Here's one reader you won't lose with your opinions of SB1070.
    I've largely agreed with you on park privatization, and I suspect
    we'd agree on immigration, largely. However: My issues with the border are the Hamas/Hezbollah types of bad actor who will come across the border not for labor, but with bad intentions. While we can't lock down 2000 miles of southern border (and let's not forget the northern one), we could make it a bit harder. 1071 is, in my mind, a good thing not because of what it says, but to keep that border problem in sight... because our political class doesn't wnat to deal with it at all. (and that's both parties!)

  • John

    While I fully agree - and will defend - your right to carry your opinion of SB1070, I will retain my right to my own perspective. Something you routinely fail to permit.

    You don't like SB1070 and are, and remain, a sycophant of the illegal immigration cadre. That's up to you, but most - and I do mean MOST - of your countrymen disagree. And while "majority rule" may not always be viewed as "correct" from the perspective of history, this is one battle where the majority are right and, I hope, will prevail.

    Bottom line, your position on this issue, no matter what tortured logic you wish to use to defend it, is neither helpful, productive, positive or ethical. So, count me as one more person who has now relegated you to the scrapheap of irrelevancy.

  • Tim

    @Bill Beyer Finding the 'bad actor' border crosser that don't pass at an offical checkpoint is a signal to noise problem.

    You can drastically clamp down on the border -- which will eventually fail; because protecting the country's borders 100% against non-approved entry is impossible.

    Or, you can simply make the problem smaller. If you easily allow border crossing, guest workers, an open labor market, and decriminalization of drugs; then the few crossings outside of offical channels would, almost by definition, be people up to no good. The adjustmet becomes setting the ratio of tolerance for free labor and legal drugs versus incentives to cross illegally.

  • D-man

    @Tim: my ex-brother-in-law had to pack up and leave his condo because his neighbor, a hopelessly addicted illegal-immigrant crankhead, began to threaten all the neighbors' lives. One of which is a little old lady in the beginning stages of Alzheimers. The town in question in is a "sanctuary city," so there is no relief in sight from his local government, much less the police. How about you buy and move into his place, you set your own personal ratio of (tolerance for free labor + legal drugs) ÷ (illegal border crossing), then tell us all how it works out for you?

    Legalized drugs is the best NIMBY issue I can imagine. Who among us WANTS to live next door to a druggie? I'm willing to wager that neither you nor Coyote lives within 5 miles of one, but are content telling me "shut up and learn to live with it."

  • John O'Hara

    Mr. Meyers, I think you've stated the issues pretty well. And I'm glad that you're willing to continue to speak them while everybody else is upset by them. The truth is that our leaders whether they be those in Arizona or those in New York, where I live, know that they need something to frighten us with in order to get away with the abuse of power they thrive on.

    I never liked the law because its not about any of the claims they made, its about trying to shore up their votes. The whole purpose of the law, and many others like it, is to control and intimidate all of us through the tactic of divide and conquer.

    The question I wonder about is when the populous is going to awaken and remove these corrupt people from power.

    -- John O.

  • SunSword

    A nation may collectively decide who may immigrate, and who may not.
    A nation that cannot control its borders is no longer a nation.
    This debate is not about illegal high tech workers, or illegal doctors, or illegal scientists.
    It is about a low skilled, low education "group" that places more net costs (schooling, medical services, criminal justice) on society than it provides in benefits to that society.

  • http://http//www.tinyvital.com/blog John Moore

    I've been a reader for a long time and will continue to be, even though your position on immigration defies any sort of realistic analysis.

    In your fantasy libertarian world, open borders would work - until enough people came across to vote themselves new laws that ended your libertarian world.

    In our real world, your ultra-orthadox libertarian view on this is simply in conflict with reality. We DO live in a welfare state, and your arguments are not going to change that. Nations do exist, and need to protect themselves and control their borders, and that is not going to change in the forseeable future. Bad actors do exist, and will take advantage of loose borders to bring their malevolence into our midst. Allowing blatant lawbreaking encourages, well, blatant lawbreaking, and I thought even libertarians were in favor of obeying laws that are created in accordance with the constitutional system - even if they disagree with them.

    So keep on harping, Warren, but you're just dead wrong on this issue, in the real world, where engineers like yourself *usually* live (well, there are exceptions, like the very high percentage of Al Qaeda suicide attackers who are engineers... but you know what I mean).

  • Gil

    Indeed as it has pointed out by some - open borders will mostly be a NIMBY issue for those who want the cheap labour. It's could be akin the how some see the 1800's - some will remember a romantic time where people were well-dressed and polite people, others will remember polluting factories and terrible working conditions. Sure most people don't mind the honest hardworking immigrants who wish to better themselves and their family but open borders means everyone gets in no matter what. Hence there's the capacity for a great many people to come in regardless of their aspirations. Being a beggar in the U.S. is bound to more profitable than in the poorest parts of the world. Being a deadbeat drug addict is bound to be better in the U.S. than in most parts of the world. Heck, being tossed into a U.S. jail is better than what criminals get in other parts of the world.

  • GaryP

    I continue to read your blog despite your continued inability to see the real issue with mass illegal immigration.

    The reason Bush supported immigration reform was to try to forge an Republican alliance with Hispanics to balance the Black-Democrat axis.
    It was both wrong for our nation and ill thought out. Offering Mexicans opportunity in the US will never be as attractive as offering govt handouts so as the immigrants become acclimitized to the welfare mentality, they would have moved towards being another group of Democrat serfs.

    The reason the Democrats support illegal immigration is to import "voters" to defend their majority as middle class citizens begin to turn against the progressives vision of a "Europeanized" America. Democrats have already turned the black underclass, public employees, and the white underclass into "serfs" who see themselves as totally dependant on continued federal and state subsidies and preferential treatment. Bringing in illegal "voters" is the reason Democrats always fight (as racist) any law requiring ID's to vote and why we frequently see more "votes" in elections than there are registered voters. (Intimidation of white voters is also the goal of this administration as seen in their handling of the Black Panthers case.)

    Illegal immigration is not a humanitarian issue. It is simply put, a slow-motion coup by the Democrats to ensure that the welfare state remains in place until we are all "serfs." You may think you want the Democrats to succeed, but look at the countries where these policies are in place. Venezuala will soon look good compared to the US, at least they have oil, even if the socialists can't manage to extract it.

    Close the border, establish a generous guest worker program that eliminates importing welfare clients and voter fraud and I am with you. However, you will never get any support from progressives for anything other than importing another underclass to help them retain their increasingly illegitimate grasp on power.

  • GaryP

    The issue is not humanitarian. If it is, we should welcome the arrival of 6 billion fellow human beings and then try to provide all of them with all their needs.

    The reason the progressives will fight any effort to control illegal immigration is that they desire to import another "underclass" to ensure that they can never be voted out.

    They have created a black underclass. They are creating as quickly as possible a white underclass. They support (and are supported by) the public employee "overclass."

    They want to disenfranchise middle class Americas of all races (but especially whites). Witness the DoJ reaction to Black Panther voter intimidation--soon coming to a voting place near you.

    They want to increase voter fraud. There are now often more "votes" than registered voters and elections are increasingly fradulent throughout America.

    The goal of encouranging illegal immigration is simply a "slow-motion coup" and the destruction of our Republic.

    Close the border and estabish a guest worker program with real teeth to prevent welfare abuse and voter fraud and I am with you on this issue. You'll never see this supported by Democrats because they don't care whether Hispanics succeed in America. They only care if they can retain power.

  • skh.pcola

    You've lost about half of your readers because--unlike 95% of everything else that you proffer an opinion on--you are tap-dancing around the facts about illegal immigration. Just because you have a hard-on for allowing anybody to cross our border, set up residence, and work for below-market wages, doesn't mean that your case is made any stronger by your inane and asinine logic. This whole neo-Libertarian, bullcrap dogma of you and yours sounds silly and sophomoric to anybody who understands what's going on here. All it takes to lose people who previously admired and enjoyed your posts is a couple or several retarded rants about how illegal immigrants shouldn't be...illegal. Whatever, dude. Quit twisting yourself into a pretzel trying to justify your obvious bias.

  • http://stopthebreathing.blogtownhall.com astonerii

    From American Thinker: "This follows from the logic of sovereignty's origin with the individual and its partial delegation for the limited purpose of safeguarding our natural rights. The State has no other legitimate function than to safeguard the natural rights of those whose collective sovereign delegation alone leads to its creation."

    This is why all of your "noble" arguments about how people have a right to work, and thus a right to work here in the United States of America fail. Because the United States of America was created to protect the sovereign rights of those who delegate it authority to act.

  • IgotBupkis, President, United Anarchist Society

    > Still more on the immigration non-crime-wave here.

    I see your evidence -- And I call and raise you.

    Furthermore -- I continue to await your efforts to explain the self-evident information this visualization tool of US census data provides:
    Immigration Explorer
    Select a foreign-born group to see how they settled across the United States.

    For a true eye opener,
    a) set the date to 1880
    b) Switch from "all countries" to a specific nation
    c) slowly run the date through to current times for a number of nationalities (avoid the latin countries, do those last, *especially* Mexico)

    If you don't see a difference for the latin influx, you're either as blind as a bat, or lying...

  • http://WilliamLee2014.org WilliamLee2014

    I find that when someone has to resort to false examples, their arguments are either very weak, or they don't understand the issue.
    Coyote states,
    "The law asks police to make a determination (e.g. probable cause that one is an illegal immigrant) that is impossible for actual human beings to make without such profiling."

    This is how "actual human beings" can suspect, and thereby hold someone, so a determination can be made that one is an illegal immigrant.
    Someone driving a car
    Doesn't speak English
    Cannot produce a Driver's license
    Cannot prove car registration
    Cannot produce proof of insurance
    Cannot provide a home address
    The aforementioned are illegal for anyone, regardless of immigrant or citizenship status.
    At this point, a determination is NOT Made by the responding officer, but the person is taken into custody for violating the law (again Regardless of immigrant status) where a determination will be made.

  • ruralcounsel

    As an sporadic occasional reader, let me say that I think you've taken the Libertarian theme too far as applied to immigration. Like all ideologies, it produces absurd results taken to extremes.

    Several of your commenters have made the same point, rather well. The issue is sovereignty. The issue is defense of national borders. Not all people have a right to work in our nation. Only citizens and those who we've legally allowed to enter for that purpose. It only makes it worse that many illegal immigrants are violent or criminals or both. And I mean criminals for other than immigration reasons. But that is not, nor should it be the entire focus.

    Prohibition is a horrid analogy, for multiple reasons. First, because the primary effort of prohibition was preventing our own citizens from drinking alcohol. Given your rather lucid logic in the climate arena, I'm appalled at how terrible this one is.

    Our non-enforcement policy is creating a porous border with a neighboring country where the rule of law is disintegrating. Only chaos and heartache can result. We've allowed our Legislature to be disrespectfully lectured and lied to by the President of Mexico, for his own hypocritical political reasons. Mexicans need to stay on their own side of the border, until they can enter legally.

    I would approve of a East German-style barrier, complete with walls, barricades, minefields, towers, patrols, and machine gun positions, from one end of the border to the other. Those crossing illegally now have proven their lack of respect for our laws and our culture. Until they can show an improved level of respect, we should also put a complete moratorium on any additional legal immigration from that country.

    Enough of the kumbayah stuff. The world is neither a safe, fair, nor just place. In the sea of life, those who cannot repel boarders usually end up tossed overboard with a bullet through the head.