Opinion: In Arizona, Courts Trump Lawmaking

By Mark Krikorian on July 29, 2010

AOL News, July 28, 2010

It's no surprise that key parts of the Arizona immigration law were temporarily delayed today by a federal judge. The many lawsuits brought by the opponents of immigration enforcement (including the Obama administration) will now proceed. As Churchill said in a different context, this isn't the end; it's not even the beginning of the end. It's merely the end of the beginning.

Assuming the state doesn't give up, which it has already said it will not, everyone understands this process will take several years of appeals, eventually reaching the Supreme Court. In today's America, all important social and political issues are decided by the courts, not the people or their elected representatives. It may not be a sensible way to make policy, but with lawyers of the American Civil Liberties Union implacably hostile to immigration enforcement -- some inside the government, some outside -- there's no alternative.

That said, some parts of the new Arizona law were unaffected by today's ruling, most notably the prohibition against "sanctuary cities" that forbid cooperation with federal immigration authorities. Sanctuary cities are already prohibited by federal law, but successive administrations have done nothing to punish these jurisdictions, which interfere with immigration enforcement -- a position trumped, of course, by this administration actually suing a state for trying to assist in that enforcement. Perhaps most importantly, the judge did not enjoin the provision allowing private citizens to sue such sanctuary jurisdictions, opening the door for the first time to legal action against these scofflaw cities.

But apart from the specifics of the Arizona lawsuits, the ruling's effects are likely to be positive for the cause of enforcement of immigration laws. Poll after poll has shown substantial nationwide support for Arizona's effort to help enforce federal law. Today's ruling, like the filing of the Justice Department lawsuit in the first place, reinforces the public sense that the federal government is simply uninterested in securing the borders. In particular, Democratic lawmakers up for election in November will be saddled with this usurpation of the public will, and if they lose, many of their colleagues are likely to discover a new zeal for immigration enforcement.

In a broader sense, the frustration of public demands for border control through litigation is instructive when thinking about the debate in Washington over immigration. What advocates call "comprehensive immigration reform" is sold as a package, a grand bargain, of amnesty for illegal aliens (and increased legal immigration) in exchange for tougher enforcement in the future. But if the Arizona experience has taught us anything, it's that any new enforcement measure will be tied up in the courts for years. This makes a grand bargain impossible, almost by definition: The amnesty part of the deal would be implemented immediately, while the promised enforcement would languish in court and might never survive.

This is probably the most important lesson from the Arizona lawsuits: that comprehensive immigration reform is out of the question. Enforcement measures must not only be legislated before any discussion of amnesty takes place; they must be fully litigated, too.