Suing Arizona

By Mark Krikorian on July 14, 2010

National Interest Online, July 14, 2010

The Obama Justice Department’s lawsuit against Arizona’s new immigration law, S.B. 1070, has been criticized on several grounds: It has no merit, since the measure is consistent with federal law. It is hypocritical, since there are no lawsuits against so-called sanctuary cities, which unlike Arizona are explicitly in violation of federal immigration law. It is premature, since the law doesn’t even go into effect until July 29. It is a political stunt, intended to increase Hispanic turnout in November.

But another concern about the lawsuit has received less attention: it represents a foreign-policy surrender.

The Justice Department’s filing repeatedly cites foreign policy as a rationale for a judge to quash the Arizona immigration law: “S.B. 1070 also interferes with U.S. foreign affairs priorities”; it “conflicts with foreign policy”; “it will interfere with vital foreign policy and national security interests by disrupting the United States’ relationship with Mexico and other countries.”

The most expansive discussion of foreign affairs in the filing is:



38. Because S.B. 1070, in both its singularly stated purpose and necessary operation, conflicts with the federal government’s balance of competing objectives in the enforcement of the federal immigration laws, its passage already has had foreign policy implications for U.S. diplomatic relations with other countries, including Mexico and many others. S.B. 1070 has also had foreign policy implications concerning specific national interests regarding national security, drug enforcement, tourism, trade, and a variety of other issues. See, e.g.,Travel Alert, Secretaría de Relaciones Exteriores, Mexico, Apr. 27, 2010, available at /cp_121eng.html; Mexican President Calderon’s Address to Joint Meeting of Congress, May 20, 2010, available at S.B. 1070 has subjected the United States to direct criticism by other countries and international organizations and has resulted in a breakdown in certain planned bilateral and multilateral arrangements on issues such as border security and disaster management. S.B. 1070 has in these ways undermined several aspects of U.S. foreign policy related to immigration issues and other national concerns that are unrelated to immigration.


Of course, we often tailor our policies in the face of intransigent positions of foreign countries, especially when there is little cost to us. For instance, it’s of little importance to U.S. interests whether the country with Skopje as its capital is called “the former Yugoslav Republic of Macedonia” or something else, so early on we didn’t make an issue of it and kept the Greeks happy by calling it FYROM. Likewise, because the Peking regime insists, we call our embassy in Taipei, staffed with foreign-service officers, the “American Institute in Taiwan” and mostly go along with the charade of One China. Every four years, American presidential candidates promise to move our embassy in Israel to Jerusalem, recognizing the obvious fact that it is the capital of the Jewish state, but because of fierce Arab opposition, we never go through with it.

Even in domestic matters we sometimes acquiesce to foreign demands; everyone knows, for instance, that the Ottoman Empire in its death throes carried out a genocide of the Armenian people, but because the present Turkish republic is monomaniacal in its denial, we pretend to go along (though because of recent events that may change in the run-up to April 24, 2011, the ninety-sixth anniversary of the start of the genocide).

But immigration is something different altogether. As the quotes above suggest, the Arizona lawsuit is part of a pattern, begun in the previous administration, of giving Mexico an effective veto over one of the most important functions of the federal government. After all, S.B. 1070 can only have the effect of “disrupting the United States’ relationship with Mexico” if Mexico is adamant in its opposition to America’s efforts to control its borders.

And adamant it is. President Felipe Calderon, during his visit to Washington in May, minced no words in attacking the citizens of Arizona for daring to try to limit illegal immigration. He was comfortable in doing this not just because he was encouraged by President Obama and literally applauded by Democrats during his address to a joint session of Congress, but also because for the past decade the United States has frequently deferred to Mexico’s intense opposition to the exercise of American sovereignty. As I discuss in some length in my book, we are in danger of the development of a regime of condominium, or joint sovereignty, in the southwest, where the border lines remain as they are but the power relationships change such that U.S. jurisdictions will need the approval of the Mexican foreign ministry for measures that would affect Mexican immigrants, or Mexican Americans, or even Hispanics more generally.

The formal title of our embassy in Taipei is ultimately of little consequence to our future, so giving in to the Chinese is prudent. Whether we enforce our borders, on the other hand, is an existential question, and acceding to Mexico’s demands, as the Obama administration has done in its lawsuit against Arizona, is perilous indeed.