ACRU

Let the People Decide, as Long as They Wear Black Robes

John Armor notes that a pro-illegal immigrant group which opposed the Hazelton-style ordinance adopted in Texas (by a vote of better than two-to-one) called itself, “Let the People Decide.” Not to miss a beat, this same group is now going to court, presumably under the motto, “Let the Judges Undecide.” The irony here parallels what the anti-war press has been trying to hang around the President’s neck when he spoke several years ago on a destroyer donning a huge, “Mission Accomplished” sign. If you think the press is going to cover the Texas “vote-then-sue” story with anything like the zeal it covered, and continues to cover, the aging “Mission Accomplished” episode, however, you’ve been reading a different press.

One might inquire as to what the allegations of this lawsuit will be, now that the people have decided. I read a short article about that this morning, I believe in USA Today. The story was that the suit will claim the ordinance is unlawful because (1) immigration enforcement is a federal matter, not given over to state or local governments, and (2) the ordinance is “discriminatory.”

These arguments should not long detain the courts. First, as I understand it, the ordinance does not purport to “enforce” federal law (which in the matter of immigration means deportation). It simply attaches a price to practices that encourage or facilitate breaking federal law — practices that have local consequences and absorb local tax dollars. (And, tragically, practices that in extreme instances have cost local lives, namely the killings of a father and son in Los Angeles and two teenage friends in Virginia Beach, resulting at least in the latter case in a change in that city’s previous “sanctuary”-oriented immigration policies).

Local ordinances that work in tandem with federal law are in any event neither new nor improper. For example, local ordinances banning “head shops” work in tandem with federal anti-drug laws, but no serious person (and no court known to me) has taken the view that such ordinances are illegal for doing so. A federal system of government means that there is a separate sphere of authority for state and local governments; it does not mean that those governments may not freely choose to cooperate with the aims of federal law.

The notion that the new ordinance is “discriminatory” stands on a different footing, since it’s true. It does indeed discriminate. But the Constitution at no point prevents discrimination. It prevents invidious discrimination — that is, the government’s apportioning penalties and rewards based on characteristics a person cannot control, such as race, color or ethnicity.

The best that can be said of the notion that a person cannot control whether he sneaks into the country is that it is preposterous. It is true, of course, that an illegal immigrant might (and in the typical case certainly does) have a reason for wanting to by-pass the rules others have to follow, such as that he wants a quick route to a better paying job (or a better paying welfare agency, or better funded social services, etc.). But the mere existence of a reason for behavior does not give it Equal Protection significance; indeed, it does not take the legal discussion beyond the level of a truism. All conscious behavior takes root in some sort of reason. To say that it’s “discriminatory” for the law to take account of a person’s choosing to help himself — rules be damned — is to warp the concept of “discrimination” beyond recognition. It’s the same as saying that we can’t toss (say) an Hispanic bank robber in jail because this would be “discriminatory” toward hold-up artists.

Illegal immigrants have a choice, just as the far more numerous group of legal immigrants did and do. When a town, be it in Texas or Pennsylvania, reacts against the illegal (and selfish and costly) choice, that can constitute “discrimination” only in an alternate universe.