Yesterday, the Obama administration filed a lawsuit challenging the constitutionality of Arizona’s recently enacted law that is designed to curb illegal immigration. The Arizona law has not yet taken effect — that will occur on July 29.  To generate more discussion and debate, Cato will be hosting a policy forum on the legal challenge and related issues on July 21.  If the weather in DC continues to cooperate, it will feel like we are actually in Arizona.

Go here for Cato work related to immigration policy.

Feds Challenge Arizona Immigration Law is a post from Cato @ Liberty - Cato Institute Blog

The June issue of Cato’s monthly newsletter on immigration reform, just released, tackles the timely topic of “Immigrants and Crime: Perceptions vs. Reality.” The bulletin finds that, contrary to public perception, immigration has not caused higher crime rates, in Arizona or in the nation as a whole. In fact, one new study even suggests that a rising level of immigration in a city actually leads to lower crime rates.

According to bulletin editor and author Stuart Anderson, a Cato adjunct scholar, “National studies have reached the conclusion that foreign-born (both legal and illegal immigrants) are less likely to commit crimes than the native-born.” It’s an important fact to consider as other states look to copy Arizona’s tough new law against illegal immigration, which was in large part motivated by fears of crime.

The latest bulletin is the third in a series Cato plans to publish through 2010 and into 2011. The May issue analyzed the pluses and minuses of a Senate Democratic proposal to reform U.S. immigration law, and the April issue critiqued efforts to impose a national ID card and the E-Verify system.

You can sign up here to receive the bulletin each month by email.

Latest Immigration Reform Bulletin Examines Immigrant Crime Myth is a post from Cato @ Liberty - Cato Institute Blog

Kirk Adams, speaker of the Arizona House of Representatives, has an article in today’s Washington Post on the controversial Arizona immigration law.  Here’s an excerpt:

Under the law, officers can only attempt to determine a person’s immigration status during “lawful contact,” which is defined as a lawful stop, detention or arrest. Any “reasonable suspicion” can be derived only through the investigation of another violation or crime. Those who are concerned that law enforcement can simply walk up to a person and say, “Can I see your papers?” should keep this in mind.

The police are going to ask questions and request to see papers in a variety of circumstances — whether they have reasonable suspicion or not.  From a legal, constitutional, and practical perspective, the key issue is this: What are the consequences, if any, for the person who stands his ground and declines to answer questions or declines to produce identification papers?  If a person declines, will the police back off and say, “Well, that is your right, sir, you may go” or will the police escalate the situation by ordering the person to answer questions, ordering the production of identification, detaining the person, or threaten the person with arrest on bogus charges?

The police are trained to blur the line between “voluntary” interactions with people (perfectly lawful) and “involuntary” interactions with people (where police power is limited by the Constitution).  So, for example, if a police agent says, “Okay pal, let’s see what’s in the backpack!”  it is unclear whether the officer just made a request (lawful) or issued an order (for my purposes here, unlawful).  The onus here is on the layperson to speak up if he does not wish to voluntarily consent to a search: “Officer, I don’t consent to any searches.”  Upon hearing that, the officer will either (a) retreat; (b) clarify that he was ordering, not asking; (c) press the person some more to consent.  A dishonest officer can just lie and deny what you said — and if that matter goes to court the outcome will depend on who the judge believes.  That’s a severe practical disadvantage for laypeople.

With that background in mind, check out this video footage taken by a guy who seems to know constitutional law and immigration law inside out.

The vehicle is not stopped on a warrant, probable cause, or reasonable suspicion.  As far as I can tell, all the cars are being stopped.  The police ask about his immigration status and the driver declines to answer.  The man in the car knows the law well and quickly makes it crystal clear that he’s not interested in a “voluntary” encounter with the police — he wants to be on his way.  The police repeatedly evade his attempt to clarify the situation.  That is, if the police are detaining him, the driver does not want to flee or resist the officers (that’s a crime) — but if the police are not detaining him, the driver does not wish to hang out with them and talk — he wants to be on his way.  Watch the police lie and/or illegally threaten that he will be detained — until he answers their questions.  Watch the police threaten to arrest the man for causing a “safety” hazard, or for “impeding” or obstructing their “work.”  Given those police actions, most people will come to the conclusion that they have no choice in the matter — answer the questions and produce the ID papers.  These are the situations that the courts rarely see.  The citizen who was understandably intimidated by the threats may get mad, but it is not worth it to sue.  If an illegal is discovered, he would be deported in a matter of hours.  This video is thus a real public service announcement — whatever your view is on the immigration matter, do understand clearly how the police will be are interacting with people.

Note also that the police in the video clip work for the federal government, not Arizona.   So those concerned about the Constitution should remain on guard when they hear the claim that “Arizona is only doing what the federal government is already doing.”  Further,  it is doubtful that the Obama administration intends to roll back or reform the powers of the federal police.  Instead, it is trying to retain federal police powers while trying to find a way to challenge Arizona’s methods on racial/ethnic grounds.  The Arizona law is quite misguided, but so too is the president’s legal challenge.

For a terrific video that instructs people on how to deal with the police, go here.

For related Cato work on immigration law, go here, here, and here.

Immigration Law — Up Close is a post from Cato @ Liberty - Cato Institute Blog

Today Politico Arena asks:

Does the level of support for Arizona’s  immigration law demonstrate that immigration can be a potent campaign issue in the 2010 midterms?

My response:

Few national issues produce more heat and less light than immigration, as the reaction to Arizona’s recent legislation on the subject demonstrates. And with nearly three-quarters of Americans now saying they approve of allowing police to ask for documents, according to the latest Pew Research Center poll, and the Arizona law’s approval-disapproval rating at nearly 2 to 1, it’s hard to imagine that immigration will not be a factor in the coming elections.

The issues surrounding the immigration debate — criminal, economic, social — are often complex, and not always clear. But the underlying issue is clear: We no longer control our southern border, and Congress seems unable or unwilling to do anything about it. It hardly needs saying that a welfare state, in the age of terrorism, cannot have open borders. If the failure to control is partly a function of our substantive law — the absence of a serious guest-worker program, for example — then that needs to be corrected. But it needs to be done in concert with serious enforcement.

Yet what was President Obama’s response to the Arizona law, which at bottom was a call to Washington to do something? It was to ask the Justice Department to look for any legal problems in the law and to respond accordingly. It was to play the presumed political card, that is, rather than to address the underlying issue, which he’d promised to do during his campaign for the presidency. Well if the Pew numbers are any indication, this “master politician” may have once again, as with ObamaCare, misread his mandate and the public mood. For a growing number of Americans, as recent elections have shown, November can’t come soon enough.

Getting Serious about Immigration is a post from Cato @ Liberty - Cato Institute Blog

In a gutsy display for a newspaper, the Arizona Republic in a front-page editorial yesterday castigated the state’s top politicians for a failure of leadership on immigration.

Prompting the editorial was the passage of Arizona’s tough new law making it a crime to be an illegal immigrant in the state. Under the banner headline, “STOP FAILING ARIZONA; START FIXING IMMIGRATION,” the state’s major newspaper fired with both barrels:

We need leaders.
The federal government is abdicating its duty on the border.
Arizona politicians are pandering to public fear.
The result is a state law that intimidates Latinos while doing nothing to curb illegal immigration.
This represents years of failure. Years of politicians taking the easy way and allowing the debate to descend into chaos.
The Arizona Republic has been calling for comprehensive immigration reform continuously since 2002. For a brief time, our congressional delegation led the nation on
this front. But no more.
Now, it seems our elected officials prefer to serve political expediency instead.

The editorial then named ten prominent political leaders from the state, Republicans and Democrats alike, who have either failed to champion real reform for fear of a political backlash, or who have stoked the backlash with inflammatory rhetoric.

2002 was also the year that the Cato Institute made the case for comprehensive immigration reform with my study, “Willing Workers: Fixing the Problem of Illegal Mexican Migration to the United States.” The study argued that enforcement alone will not solve the problem. Immigration law itself must be changed to accommodate the legitimate labor-force needs of a growing U.S. economy.

The Republic editorial put the argument succinctly:

Reform must create a legal pipeline for future workers that is demand-based and temporary. With a legal framework in place, there will be no reason to be in this country without permission. Foreigners who break our laws will be prosecuted, punished and deported.

Comprehensive reform will make the border safer. When migrant labor is channeled through the legal ports of entry, the Border Patrol can focus on catching drug smugglers and other criminals instead of chasing busboys across the desert.

Real leaders will have the courage to say that.

One real newspaper has shown them how.

Arizona Republic Leads the Way on Immigration is a post from Cato @ Liberty - Cato Institute Blog

The latest catch phrase in the immigration debate is that we must “get control of our borders” before we consider actually changing the current immigration law that has made enforcement so difficult in the first place.

In his Washington Post column yesterday, George Will wrote that “the government’s refusal to control [the U.S.-Mexican] border is why there are an estimated 460,000 illegal immigrants in Arizona and why the nation, sensibly insisting on first things first, resists ‘comprehensive’ immigration reform.”

On the other side of the political spectrum, Democrats in Congress this week unveiled the outlines of an immigration bill that would postpone any broader reforms, such as a new worker visa program or legalization of workers already here, until a series of border security “benchmarks” have been met.

Requiring successful enforcement of the current immigration laws before they can be changed is a non sequitur. It’s like saying, in 1932, that we can’t repeal the nationwide prohibition on alcohol consumption until we’ve drastically reduced the number of moonshine stills and bootleggers. But Prohibition itself created the conditions for the rise of those underground enterprises, and the repeal of Prohibition was necessary before the government could “get control” of its unintended consequences.

Illegal immigration is the Prohibition debate of our day. By essentially barring the legal entry of low-skilled immigrant workers, our own government has created the conditions for an underground labor market, complete with smuggling and day-labor operations. As long as the government maintains this prohibition, illegal immigration will be widespread, and the cost of reducing it, in tax dollars and compromised civil liberties, will be enormous.

We know from experience that expanding opportunities for legal immigration can dramatically reduce incentives for illegal immigration. In the 1950s, the federal government faced widespread illegal immigration across the Mexican border. In response, the government simultaneously beefed up enforcement while greatly expanding the number of workers allowed in the country through the Bracero guest-worker program. The result: Apprehensions at the border dropped by 95 percent. (For documentation, see this excellent 2003 paper by Stuart Anderson, a Cato adjunct scholar and executive director of the National Foundation for American Policy.)

If we want to “get control” of our border with Mexico, the smartest thing we could do would be to allow more workers to enter the United States legally under the umbrella of comprehensive immigration reform. Then we could focus our enforcement resources on a much smaller number of people who for whatever reason are still operating outside the law.

To ‘Control the Border,’ First Reform Immigration Law is a post from Cato @ Liberty - Cato Institute Blog

A silver lining of the Arizona immigration law is that is has turned up the heat on Washington to re-examine federal policy. As I’ve made the rounds of talk radio shows today, one of the questions that keeps coming up is just what changes should be made in federal law to tackle illegal immigration. Glad you asked.

In brief, the single most effective change would be to expand opportunities for legal immigration, including for low-skilled workers who make up the large majority of the illegal population.

I make the case for comprehensive immigration reform in an op-ed in today’s Philadelphia Inquirer.

For a more comprehensive case for comprehensive reform, see the lead article I wrote for the current issue of the Albany Government Law Review, titled “Comprehensive Immigration Reform: What Congress and the President Need to do to Make It Work.”

The Federal Solution to Illegal Immigration is a post from Cato @ Liberty - Cato Institute Blog

Lawmakers in Arizona must believe the state’s law enforcement officers have too much time on their hands.

A bill passed by the legislature yesterday will make it a misdemeanor to be in Arizona without proper immigration paperwork. It also directs Arizona police to question anyone about their immigration status if they have reason to suspect the person is in the country illegally. Failure to produce the proper documents could result in arrest, a $2,500 fine, and up to six months in jail.

Making and enforcing immigration law is a federal responsibility. State and local police should focus their resources on preventing crime and apprehending real criminals who pose a danger to public safety.

Police in Arizona seem to agree. According to an Associated Press report,

[The bill] is opposed by police chiefs, who worry that the law would be too costly, that it would distract them from dealing with more serious problems, and that it would sow such distrust among immigrants that they would not cooperate with officers investigating other crimes.

The right response to illegal immigration should be to change our laws to expand opportunities for legal immigration. As our numerous studies have shown, a comprehensive immigration reform bill in Congress that included a robust temporary worker program would reduce illegal immigration, make the U.S. border more secure, and boost our economy.

Arizona Turns Immigrant Workers into Criminals is a post from Cato @ Liberty - Cato Institute Blog

In a recent post, I noted how Department of Homeland Security secretary Janet Napolitano was “taking the national ID tar baby in a loving embrace.” Now the administration seems to be similarly embracing the E-Verify government background check system.

Starting September 8th, it will go forward with a Bush administration plan to require federal contractors to check their employees against federal databases. The E-Verify program is riddled with problems, and it will send many American workers and legal immigrants into Kafkaesque ordeals when they find they aren’t approved by the federal government to earn a living. Ultimately, “internal enforcement” of immigration law, which is what E-Verify is about, requires a biometric national identity system.

Wasn’t a Democratic administration going to be the antidote to the aggressive security-statism of the Bush administration? Well, no. Once in power, either political party will see merit in national ID systems. After all, a national ID gives the government direct regulatory control over individuals – and that’s a sweet sound to the powerful, regardless of political affiliation. This is why it was so interesting to see the left begin to embrace a national ID as it anticipated an Obama victory in November.

Parties in power like national ID systems.

Parties in Power Like National ID Systems is a post from Cato @ Liberty - Cato Institute Blog

The U.S. Chamber of Commerce has a new paper out on electronic employment verification systems. Using government estimates, it finds that operating a nationwide worker background check system would cost $10 billion a year.

The Chamber is no opponent of requiring employers to check workers’ immigration status — I oppose the policy, preferring to live in a free country — but the paper has a lot of information about the practical impediments to giving the federal government a say in every hiring decision.

It also gives the last word to my paper, Electronic Employment Eligibility: Franz Kafka’s Solution to Illegal Immigration. In the paper, I discuss a method for verifying work eligibility under the current immigration law without creating a national identity system. It’s possible, but highly unlikely. As I say in my paper:

Unless the federal government can accept the risk of error and is willing to commit to lasting employment eligibility rules, it will require any internal enforcement program to use databases and tracking rather than just issuing cards that prove eligibility to work and nothing more. It will push Americans toward a national ID and worker surveillance system.

U.S. Chamber on Electronic Employment Verification is a post from Cato @ Liberty - Cato Institute Blog