Arizona, What to Do About Immigration Law?

US-Mexico Border fence (National Journal)

OK, Arizona, you now have one-fourth of an immigration law. What are you going to do about it?

States that have passed laws similar to Arizona's — South Carolina, Alabama, Utah, Indiana, and Georgia — are now on notice: Enforce the law at your peril. Moves in Wisconsin, Michigan, Pennsylvania, Ohio, and Illinois to follow Arizona may halt.

What the Supreme Court left of Arizona's S.B. 1070 is a provision allowing state and local law enforcement to request documentation if "reasonable suspicion exists that the person is an alien and unlawfully present." Good luck. The high court practically invited microscopic scrutiny of future detentions.

But even if state and local police, in good faith, implement this part of the law without resorting to profiling, it will have minimal operational reach. To properly check a person who might be an illegal immigrant, law enforcement must run the person through the federal Immigration and Customs Enforcement database or call ICE to do it. Senior administration officials say "concerns remain" about a blizzard of field calls from Arizona to check suspected aliens. But the Homeland Security Department has no plans to deploy additional resources to its call centers to handle new waves of document-checking calls. "Arizona won't impose its immigration priorities on the federal government," a senior official said. "The administration will adhere to existing immigration priorities."

That doesn't put Arizona back to square one. But it puts it close. The same can be said for states with copycat laws.

Where does that leave us?

With a firm, unambiguous declaration that Congress and only Congress (with the president's approval) can change, improve, or otherwise alter immigration policy. Even when states assert, as Arizona did, that they are acting in concert with and in advancement of underlying federal immigration policies, the Court declared that the Constitution's supremacy clause nullifies all ad hoc state immigration policy. "Congress has the power to preempt state law," the Court said. Until something replaces it, the 1986 Immigration Reform and Control Act guides and legally governs federal immigration policy, sealing off any state freelancing. Until Congress rewrites that law, the nation's broken immigration system will remain. Frustrated state governments and the primal screams of voters incensed by costs linked to illegal immigration such as violent crime, education, and health care must now bank on a stymied Congress to act.

Sounds hopeless, right?

There's another story about immigration policy that's been largely overlooked. It's the hardening bipartisan consensus around border security. Dollars continue to flow in this direction even amid conspicuous belt-tightening.

After President George W. Bush's attempt at comprehensive immigration reform failed, Congress adopted a default presumption in favor of spending more every year on border control. From 2008 to 2012, Congress devoted $17.8 billion for U.S. Border Patrol agents and equipment. From 2006 to 2012, the number of Border Patrol agents has increased 73 percent (from 12,350 agents to 21,370). The number of agents assigned to the nation's Southwest border increased 67 percent (from 11,032 to 18,415).

The House Homeland Security spending bill for fiscal 2013 devotes $11.7 billion to Customs and Border Patrol, $77 million more than President Obama requested. It also pegs spending for ICE at $5.8 billion, a $142 million increase over Obama's budget request.

The nation now has more Border Patrol agents and ICE detention beds (34,000) than at any time in history. For context, Border Patrol apprehensions totaled 340,252 in fiscal 2011. That's down 53 percent from 2008 (due in part to the recession and lack of available work). But that number of apprehensions was one-fifth the 2000 total.

Criminal and noncriminal deportations are also up. Way up. This, too, is a bipartisan achievement. The early Bush administration numbers on deportations were soft and soggy. But they got tougher as illegal immigration increased and political clamor arose. In 2002, the number of total deportations was 122,587. By 2008, it was 369,221.

The Obama administration kept up the heat. There were 396,906 deportations in 2011, and with four months to go in fiscal 2012, the number is 269,278. Within those numbers is a deeper story of Obama's "prioritization" of deportation policy. Criminal deportations are up sharply — from 114,415 in 2008 to 216,698 in 2011. Obama officials contend they focus resources on criminals, not law-abiding aliens who try to contribute while living in the shadows. That may be a reach. This year's criminal deportation numbers are down — 138,505 with four months left in the fiscal year. ICE insiders say that's because some of the "criminals" in previous years had traffic violations and others were driven back to the border after being caught, but were not subject to immigration court proceedings.

Still, enforcement is far from lax. Arizona told the country the nation's immigration system was dysfunctional. The Supreme Court ruled its remedy unconstitutional. On the surface, it appears nothing works and all is lost. It isn't. Slow, steady progress is being achieved on the biggest, most unifying issue in this debate — security. The numbers don't lie.

This article appeared in the Wednesday, June 27, 2012 edition of National Journal Daily.