Lack of Leadership in the Immigration Debate

Michael Zuckerman is an attorney, legal commentator, and author. His latest work entitled "Constitutional Clash: When English-Only Meets Voting Rights" will appear in the Yale Law & Policy Review.

A little-known federal law has escaped the headlines. With the debate focused on Arizona's controversial new immigration law, our elected leaders in Washington have turned a blind eye to the federal laws over which they exercise control.

Long before Arizona passed its law that will soon authorize law enforcement to demand immigration papers from anyone upon "reasonable suspicion" of being an illegal alien, the federal government passed a similar law.
Indeed, tucked away in Title 8 of the U.S. Code is a provision that expressly authorizes federal immigration officers, without a warrant, "to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States." (See 8 U.S.C. 1357). This is eerily similar to the Arizona law.

But the current debate surrounding immigration policies does not focus on this federal law.

To be sure, many of our elected officials in Washington have been outspoken about the Arizona law. Its passage has both emboldened anti-immigration forces and enraged immigrants' rights groups. It has become a national lightening rod and in some way embodies the entire debate surrounding immigration reform.

One particularly vocal group of critics has been our elected leaders in Washington. While some have voiced their support, countless Congressional Democrats have lambasted Arizona - Rep. Raul Grijalva (D-Arizona) has even called for a boycott of his own state.

Others, such as Rep. Luis Guitierrez (D-Illinois), have engaged in acts of civil disobedience to protest the Arizona law. Rep. Nydia Velazquez (D-New York), chairwoman of the Congressional Hispanic Caucus, called the law a form of legalized racial profiling and a blow to civil rights. Rep. Sheila Jackson Lee (D-Texas) analogizes the law to the Jim Crow laws in the 1950s and 1960s. The Attorney General has not ruled out legal challenges in court.

President Obama joined the chorus of critics by calling the law "misguided." He went so far as to declare that the law may "undermine basic notions of fairness we cherish as Americans."

These critics have good reason to be alarmed. The law may well be a recipe for widespread civil rights violations. It is contrary to our core constitutional values.

But, why didn't the outcry start until now? Why haven't these same officials protested the federal law that similarly permits officials to stop an individual upon reasonable suspicion that he or she is an illegal alien.

Where is the outrage?

Many of the same politicians who are speaking out against the Arizona law are the ones who hold the power to change federal law. Instead of (or, rather, in addition to) challenging the Arizona law as "misguided," the President ought to examine the laws that he swore to uphold. As the old saying goes, he who lives in a glass house should not throw stones.
It is true that some of the outrage stemming from the Arizona law is on account of a state intruding into the federal domain of immigration law.

That's a fair point. But, the provocative statements coming from those in
Washington go beyond issues of federalism.

Perhaps it was the extensive media coverage of the Arizona law that prompted politicians in Washington to speak out about its passage. And perhaps the lack of media coverage about the federal government's use of the same controversial tactic explains the silence of our elected leaders. That does not, however, excuse the silence coming from Washington.

Our elected leaders in Washington should add more than a sound-byte to the debate over the Arizona law. They should take decisive action to repeal the federal policy that generally permits an individual to be interrogated upon reasonable suspicion that he or she is an illegal alien.

To discourage states from passing these type of discriminatory laws, our leaders in Washington should start by focusing their efforts on the federal law that authorizes the very same type of discrimination.

By Michael A. Zuckerman:
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