When the Obama administration decided it had no interest in preventing the movement of undocumented aliens from Mexico into the southwestern United States, Arizona decided to take matters into its own hands. Based on a novel theory of constitutional law - namely, that if a state is unhappy with the manner in which federal law is being enforced or not being enforced, it can step into the shoes of the feds and enforce federal law as it wishes the feds would - Arizona enacted legislation to accomplish that.
The legislation created two conflicts that rose to the national stage. The first is whether any government may morally and legally interfere with freedom of association based on the birthplace of the person with whom one chooses to associate. The second is whether the states can enforce federal law in a manner different from that of the feds.
Regrettably, in addressing all of this earlier in the week, the Supreme Court overlooked the natural and fundamental freedom to associate. It is a natural right because it stems from the better nature of our humanity, and it is a fundamental right because it is protected from governmental interference by the Constitution. Freedom of association means that without force or fraud, you may freely choose to be in the presence of whomever you please, and the government cannot force you to associate with someone with whom you have chosen not to associate, nor can the government bar anyone with whom you wish to associate from associating with you.
Without even addressing the now-taken-for-granted federal curtailment of the right to associate with someone born in a foreign country and whose presence is inconsistent with arbitrary federal document requirements and quotas, the Supreme Court earlier this week struck down three of the four challenged parts of the Arizona statute, which attempted to supplant the federal regulation of freedom of association with its own version. It did so because the Constitution specifically gives to Congress the authority to regulate immigration, and Congress, by excluding all other law-writing bodies in the U.S. from enacting laws on immigration, has pre-empted the field.
The court specifically invalidated the heart and soul of this misguided Arizona law by ruling definitively that in the area of immigration, the states cannot stand in the shoes of the feds just because they disapprove of the manner in which the feds are or are not enforcing federal law. The remedy for one’s disapproval of the manner of federal law enforcement is to elect a different president or Congress; it is not to tinker with the Constitution.
Federal law cannot have a different meaning in different states, the court held. And just as the feds must respect state sovereignty in matters retained by the states under the Constitution (though they rarely do), so too, the states must respect federal sovereignty in matters that the Constitution has unambiguously delegated to the feds.
The court neither upheld nor invalidated Section 2B of the Arizona statute - which permits police inquiry of the immigration status of those arrested for non-immigration offenses - because the court found that, just as when the police stop a person for a violation of state or local law they may check their computers for outstanding warrants for the person they have stopped, so, too, they may check their computers for the person’s immigration status.
Shortly after the opinion came down, the Obama administration announced that it will cease providing Arizona police with the immigration status of persons in that state, and it will not detain anyone arrested by Arizona police for immigration violations unless those violations rise to the level of a felony, which undocumented presence in the United States is not. Thus, this constitutional rebuke to Arizona has become a personal license for the president. He has demonstrated that he will not faithfully enforce federal law as the Constitution requires. He will only enforce the laws with which he agrees.
So, because the Arizona police cannot arrest and incarcerate anyone for undocumented presence and because they cannot deliver anyone so arrested to the feds, what legitimate governmental purpose will be served by what remains of Arizona’s law? None. But the police still will harass any dark-skinned person in Arizona as they please.
Have we lost sight of the perpetual tension between human freedom and human law? Either freedom is integral to our nature, as Thomas Jefferson wrote in the Declaration of Independence, or it comes from the government, as the president and the Supreme Court demonstrated they think this week. If it is integral to our nature, no government can tell us with whom we may freely associate. If it comes from the government, we should abandon all hope, as the government will permit the exercise of only those freedoms that are not an obstacle to the contemporary exercise of its powers.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. He is the author of “It Is Dangerous to Be Right When the Government Is Wrong: The Case for Personal Freedom” (Thomas Nelson, 2011).
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