Opinion
RealClearPolitics

Arizona Law May Be Flawed, But Federal Remedy Will Be Worse

Jeremy Lott
May 7, 1:00 am ET

President Barack Obama has declared himself deeply troubled by Arizona's new immigration enforcement bill. He warned that it "carries a great amount of risk that core values that we all care about are breached" and implied that it will lead to rampant racial profiling and God only knows what else.

Attorney General Eric Holder warned that his legal eagles are keeping a close eye on how the law is implemented. If he isn't satisfied, the Justice Department could take the unusual step of suing a state to overturn a law closely modeled on federal statutes. Obama, Holder, and company say that Arizona's enforcement approach is clearly the wrong one to the problem of illegal immigration, and they could be right about that. But the kind of proposals they are supporting would be far more burdensome for American citizens.

Let's grant that the Arizona law may very well be unreasonable and troubling. But if that's the case then so is the broad mass of law that applies to illegal immigrants. The facts are pretty clear. Somewhere between 12 and 20 million people are breaking the law by simply residing in this country. They enjoy no legal right to be here and can face deportation if found out.

Since the early 1950s, immigrants have been required to carry documentation on their person at all times proving that they have the right to reside in the United States. The easiest way to tell the difference between a foreign national who has requested and been granted that right and one who has not is to ask to see his green card.

Fears of a racially-based crackdown are worth serious consideration, but the Arizona law does contain some safeguards to try to discourage that sort of thing. Police cannot simply ask to see a random suspect's papers. The request for information has to come in addition to some other lawful contact. If a police officer pulls someone over for running a red light or arrests a shoplifter, and has a reasonable suspicion that the scofflaw is not here legally, he is now supposed to ask about the scofflaw's legal status. Said scofflaw can force the officer to back off by simply producing a valid Arizona state driver's license.

If, as critics charge, the Arizona law is unreasonable, unjust, and subject to much abuse, the federal remedy would be much worse. That is the view of Alex Nowrasteh, a scholar at the libertarian Competitive Enterprise Institute who specializes in immigration studies (Disclosure: I am the co-host CEI's Liberty Week podcast). Nowrasteh opposes the Arizona law and he agrees that many of President Obama's concerns are well founded, but he warns, "The proposed comprehensive immigration reform bill would do more to Europeanize American labor markets than just about any other reform."

The Arizona law would encourage some police in some circumstances to ask for papers, and it includes stiff penalties to discourage Arizonans from "knowingly" hiring illegal workers. The outline of the federal comprehensive immigration reform would have the U.S. government issue every American citizen a national biometric identity card, establish a new government database, and use an e-verify system to determine if we would be allowed to work in this country.

Nowrasteh told me Wednesday that he has serious misgivings about these proposals. "The government databases that it already maintains have pretty high error rates," he explained. He cited alarming figures by Westat, a contractor working for the Department of Homeland Security. The firm found that the government's current limited e-verify program "misses undocumented workers 54 percent of the time and misidentifies legal workers as illegal about 1 percent of the time."

The current government databases and e-verify system may be justified because they apply mostly to federal contractors, but the Obama administration would expand this to include the entire American labor market. Some of the false positives might be cleared up but not all of them. The bottom line is that "This would keep many Americans," -- who had done nothing wrong or illegal -- "from getting a job." At the same time, it would do little to discourage illegal immigration.

Norwasteh also worries about what such changes would say about this country. "There is something fundamentally anti-American about having to ask permission from the government to get a job. I think it is literally anti all of the principles that America was founded on," he told me. Clearly he has different core values than the president.

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