Five years have passed since Arizona passed its controversial anti-immigration law, SB 1070. It’s been three years since the law was ruled largely unconstitutional by a divided Supreme Court in Arizona v. United States. With the 2016 presidential race ramping up, immigration policy and its impact on national security is again center stage. The Donald says that if he is elected, he will build a wall along the southern border and increase fees paid by Mexicans to pay for the cost of the wall. At the same time Hillary Clinton and Bernie Sanders call for comprehensive immigration reform including a path to citizenship for those in the U.S. illegally.
Likewise, Gov. Ducey’s gubernatorial campaign last year promised more walls and satellites to fight back against illegal crossing. Now, as governor, he talks more about improving ties with Mexico and increasing Mexican/Arizona commerce than building walls.
With immigration policy again in the news, it’s worth taking a moment to think about the appropriate and relative roles of the federal and state governments when it comes to immigration. Any such discussion needs to start with the core conclusion of the Supreme Court in Arizona v. United States. Our immigration policy is just part of our overall foreign policy, and foreign policy is set by Congress and the president, not the states.
As Justice Kennedy wrote, the federal government controls immigration as part of “its inherent power as sovereign to control and conduct relations with foreign nations.”
The reason SB 1070 was unconstitutional is that it crossed the border between the appropriate role of the federal government and Arizona’s. Indeed the stated purpose of SB 1070 was to “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” But, as the court wrote, immigration policy affects trade, investment, tourism, and diplomatic relations for the entire nation. It is equally fundamental that foreign countries concerned about the status, safety, and security of their nationals in the U.S. must be able to confer and communicate on this subject with one national sovereign, not the 50 separate states. Indeed, Gov. Ducey’s decision to talk about increasing trade rather than building walls during his recent trip to Mexico was a pragmatic recognition of the interrelationship of immigration and foreign policy.
Put differently, while talking tough and simplistically on immigration may be good politics when running for state office, it’s just that – talk. The campaign rhetoric brings to mind H.L. Mencken’s statement, “For every complex problem there is an answer that is clear, simple, and wrong.”
But does that mean Arizona shouldn’t play a role in encouraging trade with Mexico while discouraging illegal immigration? No, but finding the best role may lie in understanding what drives illegal border crossing, what the basic fears are, and how they are best addressed.
Nationwide, the largest concerns relating to illegal immigration have been its impact on jobs, i.e., people in the country illegally taking jobs from U.S. citizens, and violence, particularly drug violence by those engaged in illegal drug trafficking.
One would think that with a rebounding economy, illegal immigration would also increase. However, despite the rebound in the economy, illegal immigration has been declining or holding flat since 2007. While there are many causes to this counter-intuitive result, there are a couple of the primary drivers. One is enhanced border security. There are now twice as many border patrol agents as there were 10 years ago.
However, another is a changing demographic in Mexico. Mexicans are simply having fewer children and many academics say that’s what’s driving the decline. Illegal crossers traditionally tended to be young men. That demographic is changing. It’s hard to see how Arizona can affect that.
We also see a steady decline in border-related drug violence. Again, to some extent this is surely a tribute to increased border enforcement. But, another equally large factor may be increased legalization of marijuana in the U.S. According to several recent articles and studies, the illegal marijuana trade from Mexico to the U.S. is dropping annually at a rate of about 30 percent, and there has been a corresponding decrease in drug-related murders. According to a former U.S. drug czar, marijuana accounts for more than 60 percent of the illegal drug sales from Mexico into the U.S. As he said, “the vast majority of [Mexican drug cartel] money to buy guns, bribe, corrupt and destroy lives is from marijuana.”
What does all this mean? Most of the rhetoric you’ll hear in the coming weeks and months on immigration policy is just that, talk. And the ways states can impact the flow of immigration comes from unlikely sources, such as legalizing pot. Wonder if Sheriff Joe will change from supporting tanks to tokes?
— Andy Gordon is a shareholder with Coppersmith Brockelman in Phoenix. His practice areas include election and political law. He previously served as Counsel to the General Counsel at the U.S. Department of Homeland Security, working primarily on national security issues relating to Guantanamo and the southwestern border.