David R. Henderson  

Arizona Immigration Continued

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I noticed that none of the commenters on my previous post today commented on the merits of my argument. [Actually, commenter #6, Douglass Holmes, did, but that came in after I started writing this post.] I was disappointed. Instead, most of them pointed out, correctly, that I had misstated the law. I don't think it was a bad misstatement. If you talk to police much, you learn pretty quickly that it's not hard for police to find some reason to stop and question someone. A friend who has a friend on a police force told me recently that his policeman friend said that if he follows someone around for 10 minutes, he is likely to find that the person has done something that gives him an excuse to stop the person, even if it's just weaving slightly within a lane.

Moreover, Kris Kobach, who was involved in drafting the law, got some pretty broad language inserted. Here's how Andrea Nill put it:

As part of the amended bill, a police officer responding to city ordinance violations would also be required to determine the immigration status of an individual they [sic] have reasonable suspicion of being an undocumented immigrant.

She also reproduces, at the above link, the e-mail from Kobach suggesting this change.

One other commenter on my previous post, Carl The EconGuy, writes the following:

By the way, ICE already practices stopping whomever whenever they please, without cause, and forcing US citizens to prove that they have a right to be here. I know, it's happened to me, in New Mexico. So the argument that the new AZ law infringes on the rights of US citizens is bunk -- you already don't have those rights.

I had not known that. I thought ICE [what a great acronym, by the way] could do that only within x miles of the border. It doesn't change my argument, though. You can't show that entity A is not violating rights simply by showing that entity B is already violating them.

COMMENTS (18 to date)
Ray Gardner writes:

If ICE already does it wherever they please, regardless of proximity to the border, how is that proof that it's not an infringement of citizens' rights?

And police really don't need any reason at all to stop a person. There's enough frivolous laws on the books, that they can fabricate a reason post hoc.

I have family in law enforcement and a military background which has exposed me to a number of other policemen, and a vast majority of them in my experience are well intentioned, but they are ideologically predisposed to think that it's perfectly okay to act on their own totally subjective reasoning.

That's part of what draws them to law enforcement to begin with. Politically they all identify themselves as conservative though they are populists right out of central casting.

Carl The EconGuy writes:

There's nothing wrong with individual responsibility, David. I'm all for it.

I think illegal aliens should be held responsible for their illegal presence. I think police officers should be held responsible for exceeding their -- quite liberal, I admit -- mandates. I think the US Congress should be held responsible for enacting laws they do not intend to enforce. I think that bureaucrats, like ICE, should be held responsible for harassing perfectly legal citizens and residents. (By the way, ICE seems to limit unwarranted searches and seizures to 100 miles from the border, but that can obviously change overnight, because the principle has already been broken -- ICE has the power, you don't.)

What I object to most of all is the despicable behavior of Congress and the Obama Administration in all of this. If they were willing to take the heat for enforcing the laws, the AZ problem would go away, whether that would solve the problems of drugs and illegal immigration or not. I think you are placing the blame on the wrong actor. The central issue is not the AZ law, it's the federal law which the AZ law aims to enforce.

Which is why I proposed to enlighten you to the hypocrisy involved by giving you a draft of a perfectly easy new statute. I didn't hear you sign up to that as a good idea. I happen to think that law is just what is called for right now. If Congress does not want to enforce the law, it should be abolished. Not wanting a law to be enforced is no cause for Congress to complain when someone else designs to take the law, as enacted, seriously.

I think it's a sign of a lawless society, which neither libertarians nor conservatives and even some liberals do not desire, to have punitive laws on the book and then refuse to enforce them. I think the immigration laws we have are seriously awry, but I don't think AZ is to blame for asking that the laws be enforced, or for aiming to enforce them on their own when the feds won't. I think Congress is to blame. And I think that, in this case, Congress and the Administration are doing serious damage to our basic concept of a society of laws. They don't like the law, so they don't enforce it, but refuse to do the heavy lifting required to change it. In my book, that's illegal. I'd like to hold *them* responsible. Why won't you?

Carl The EconGuy writes:

So, David, why don't you tell us what you think about how ICE acts in this real life case:


Where's the greater danger? Some cops in AZ maybe stopping some mistaken people, or the willful non-enforcement of federal laws? I don't like either, but I know where I'd begin to look for a fix -- and it's in Washington, DC, not in AZ.

fundamentalist writes:

Tea Partiers focus on the fact that illegal immigrants are breaking the law. But is it a good law or is it arbitrary? A thief is a thief regardless of what the law says. A murder and rapist are exactly that regardless of the law. Getting rid of laws that prohibit theft, murder and rape won't make the perps any less theieves, murderers and rapists because those or what we call "natural laws." They're not conventions; they are violations of the natural rights to life, liberty and property.

What about immigration laws? If you change the law and eliminate restrictions on immigration, is the immigrant still illegal? No. It's an arbitrary law, not a natural law. So it's a bad law. Under natural law, people have a God-given right to pursue the means to improve their lives as long as they don't violate the natural rights of others through theft or violence. That means they have a right to move to where they can do better at pursuing their God-given rights. Denying people the right to move to someplace is a form of slavery and a denial of liberty.

Imagine if Texas passed a law forbidding people from Michigan to move there.

Henderson had it right: the way to tackle crime is to punish the perps. Punishing an entire group of people for the crimes of a minority is immoral. And we should consider that crime is higher among "illegal" immigrants because they are considered "illegal." They are afraid to go to the police and become prey for criminals.

The real reason people don't want illegal immigrants is socialism. Our socialist system can't support all the poor people south of the border. It will bankrupt the country. So they want to limit immigration. The solution is to get rid of socialism, not deny people their God-given rights.

"Illegal" immigrants are "illegal" only because of an arbitrary law to preserve socialism. If their status as "illegal" bothers people, then change the law and make them legal. Then they won't be breaking any laws. Give everyone who wants to work in the US a green card for once year for which they have to re-apply every year. If they commit a serious crime, then deport them. But Tea Partiers won't agree to that because of the problem with socialist redistribution of wealth.

Scott Clark writes:

Btw 100 mile band from the borders including coast lines covers at least 75% of the population of the country.

Tom writes:


So where do you live, I'll come and stay a while.
I hope you have dinner ready.

Oh, you didn't invite me? Is that really necessary under "natural law"?

Beverlee Roper writes:

It's Kris (not Kurt) Kobach who assisted in writing the law.

Arthur_500 writes:

The problem with any authority is the addage, Power corrupts and absolute power corrupts absolutely. Our police certainly enjoy a great deal of power and they abuse it all too often.

That said, I really have little problem with the law as I have read and understand its language. The devil, of course, is in how it is implemented and that is done by fallible humans.

When an individual is stopped for some reason they need to produce ID and a background check is run. Anything that comes up from Child Support avoidance to parking tickets is then dealt with in addition to whatever the authorities stopped the individual for in the first place. I can't see any problem with that.

I need to provide ID to purchase alchohol and in some places they even scan my ID into a databank. I need to produce ID in order to legally work for an employer. In short, we need to provide ID all the time so I fail to understand the difficulty in requiring someone who has been picked up for some reason to provide ID.

Can this be abused? Of course it can. But then police abuse their authority all the time and we don't eliminate either our laws nor the police simply because they can become Gestapo, power-hungry, morons. Instead we defer to supervisors and politicians to oversee their activities and try to keep them in line.

We have many alleged unjust laws and it is incumbent upon us in the society to work to change those laws. However, just because you don't like the speed limit or the working age limit or requirements on licensing doesn't give you permission to break the law.

We don't go around and sweep up black people simply because the majority of crimes are perpetrated by that group. We don't sweep up all minorities simply because they might be recent immigrants and possibly illegal.

Regretfully, the biggest problem is the misinformation that these people want to become American citizens. Most do not. They do not want education. They have no interest in learning the language of our economy, English. They have no interest in integrating into our society. Rather they want to pick up some cash and send it home until they make enough money so they can return home. This isn't at all what our liberal media would like to have us believe but the numbers tell the story clearly.

When we closed places like Ellis Island we reduced the ability of many people to come to this country legally. We have made laws that restrict them further. If you don't like it then change the laws and give them the opportunity to work in the United States legally. Get them the same wages and benefits that you have - thereby reducing the shadow economy that puts downward pressure on wages and benefits. But to complain that illegal residents might have to meet the same standards of identification as any citizen of the US is simply mind-boggling stupidity.

guthrie writes:


There's a fallacy relating the entire country to an individual's home. The Country is not a House. No one person 'owns' the country, right? That's collectivist thinking, and that's exactly what fundamentalist is describing as the real problem.

What food are immigrants eating? Usually they get it from a grocery store like everyone else. Who is preparing them meals? Likely the same restaurants that we citizens would go to... paying the same amount for those meals.

If you're planning on stopping by fundamentalist's home for a meal, be prepared to pay for it, one way or another. Those immigrating here, regardless of their status, are already paying for plenty on their own. If not, then the issue is with our system, not their presence.

Douglass Holmes writes:

Well said, except that there are a number of other reasons that people want to limit immigration. One is the belief that immigrants bring violent crime with them. The data doesn't support that, but people still believe it. Another is the belief that too many immigrants compete with native born for low end jobs. Don Boudreaux has made a very persuasive case that immigration is a net economic benefit. I think Boudreaux is brilliant, but his ideas don't seem to find much acceptance in the general public.
One more reason for people to oppose immigrants is that when they get to vote, they tend to vote for the kind of politicians that ran them out of their own countries. That is the concern that I have the most sympathy for.

Thomas Sewell writes:

This law is aimed at sanctuary cities. There are already locations in Arizona where this law will have no affect, because they already check the immigration status of individuals who they think aren't here legally. They do it based on existing federal laws.

The real difference is that this law contains a provision that a city can be sued if they establish policies that their police force isn't allowed to ask about immigration status.

That's a threat to the power of liberal elites that run sanctuary cities in AZ and it's why there is such an outcry. Otherwise, they'd just ignore the law just like they currently ignore federal law in their locations.

Other than the enforcement provisions, there isn't much in this law that doesn't already exist in the federal version of the law. If this law is unconstitutional based on how it's applied, then the same federal law is likely unconstitutional.

The law explicitly allows for some pretty easy presumptions for being here legally, including producing a driver's license/state id from any of the 50 states (which an illegal could actually obtain).

We can discuss the merits of requiring individuals to carry ID to show the police (I'm personally against it), but every time you are stopped by the police pre-1070, they're going to ask you for ID already anyway, so I don't see a whole lot changing in that regard.

fundamentalist writes:

Tom: "Oh, you didn't invite me? Is that really necessary under "natural law"?"

Yes, an invitation is necessary to squat on someone else's property. But if you want to rent a place nearby, you're perfectly free to do so.

Douglass: "One is the belief that immigrants bring violent crime with them. The data doesn't support that, but people still believe it."

If even it were true, the moral thing to do, as Henderson pointed out, is to punish the criminals, not everyone. And the fact that they are considered illegal makes them easy prey for criminals. Get rid of the criminal status as "illegal" and they will cooperate more with the police to stop criminals.

Douglass: "One is the belief that immigrants bring violent crime with them. The data doesn't support that, but people still believe it."

I agree, and I think it is the influence of socialism that caused people to believe that immigrants will take away jobs from locals. Socialism causes job shortages.

Douglass: "they tend to vote for the kind of politicians that ran them out of their own countries."

That is a problem. But rather than violate their natural rights, we need to educate them.

Brian Clendinen writes:

"You can't show that entity A is not violating rights simply by showing that entity B is already violating them"

But there are numoures laws which due this. One example is the Bike Helmet law in Florida. The law states any child 15 or under (if the county chooses to implement the law) must wear a helment when on a bike. My brother rode his bike all the time when he was 16 and 17. He was stoped numroues times by the local city cops because he did not have a helment on when he was just riding his bike on a neighborhood road.

Take any curfew's do they not due that. I personally do not think police will actually change their behavior much based on the law.

David R. Henderson writes:

@Beverlee Roper,
Correction made. Thanks, Beverlee.

Mercer writes:

I see that you are an expert on law enforcement because:

"A friend who has a friend on a police force told me recently that his policeman friend"

I think the issue is that some people don't want any enforcement of our immigration laws. Radley Balko has posted a video and written about police busting into people's homes and shooting their pets. Which do you think is worse a policeman asking you for an ID in public or a SWAT team breaking down your front door and shooting your dog? Which is more a violation of civil liberties?

David R. Henderson writes:

Mercer writes:
"Which do you think is worse a policeman asking you for an ID in public or a SWAT team breaking down your front door and shooting your dog?"
I think the SWAT team is worse.

S Kiggins writes:

Latest polls show that 75% of Americans agree with the AZ immigration law. That is unfortunate. I wonder whether we would be making such a fuss over illegal immigration if it was coming from our northern neighbors.

Carl The Econguy, your displeasure is understandable. One naturally repulses when "illegal" is heard--especially where one perceives that illegal activity is not punished. In criminal law, there are two terms that describe illegal acts: "malum in se" and "malum prohibitum." The former means acts that are illegal in themselves--like theft, murder, assault and battery, etc. One need not adhere to natural law to agree with this. The universality of the prohibition of such acts is sufficient. The latter, malum prohibtum, means acts that are illegal because we deem them to be illegal. There is nothing inherently wrong about immigration. Crossing the border without proper documentation is wrong because our laws say so. That leaves another question however--are our laws appropriate? To be quite honest, our immigration laws are outdated to deal with the modern requirements of the labor market. Additionally, the costs of enforcement are incredibly high. We all readily admit that our government resources are scarce, yet we want our government to pour resources into enforcing immigration laws that command enormous resources? Wouldn't it be better to assess whether we can address narco-violence at the border while accommodating those individuals who have peaceful intentions to immigrate? In other words, there is a much more efficient way to address illegal immigration while addressing narco-violence at the border. Interestingly enough, Bush attempted to do this with the comprehensive immigration reform bill in the summer of 2007. Unfortunately, a few southern senators, including Tea Party superstar Jim Demint, filibustered the bill, claiming that they wanted to reform our immigration laws but disagreed with the 2007 bill. Nor surprisingly, their claims appear to be disingenuous as they have not forwarded a single bill that would provide a comprehensive solution to our immigration problem.

Also, Carl The Econguy, when making arguments by appealing to the "rule of law," it would be much more effective if you didn't misstate the law. Part of the rule of law is actually knowing the law. Congress is the legislative body under the Constitution. As such, it has no enforcement authority. The President, under Article II, is charged with "tak[ing] care to excute the law[s]"--so any lapse in enforcing immigration laws lies with the executive branch. Unfortunately, resources are scarce, as mentioned above, and Congress has not been able to achieve the necessary immigration reform.

Mr. Henderson, thank you for your well thought-out posts on this topic. Perhaps a blessing in disguise from the AZ law is that it is likely to spur Congress into action. Here's hoping.

Ray Gardner writes:

RE: Latest polls

As an AZ resident, and registered Libertarian, I offer my own unqualified anecdotes.

A vast majority of people - anglo and hispanic - are in favor of 1077 - but many seem to understand it's deeply flawed.

I try to explain it to others by comparing to the idea of a national ID, but mostly people see it more broadly as a matter of sovereignty.

So the 30k foot view is you're either on the side of America or La Raza. Sounds overly simplistic, but I know a lot of people that wouldn't normally be labeled as "flag wavers" or simplistic, but they see it as boiling down to taking one of two sides. And the finer points of individual liberty and what this law means to all of our rights down the road is being crowded out.

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