On a highway in Arizona, south of Phoenix, a sign reads: DANGER — PUBLIC WARNING — TRAVEL NOT RECOMMENDED - Active Drug and Human Smuggling Area - Visitors May Encounter Armed Criminals and Smuggling Vehicles Traveling at High Rates of Speed.
There are no such signs on the roads of Christmas Island, outside Villawood, or by the Curtin detention centre in north-west WA.
Australia’s and America’s immigration issues bear almost no resemblance, except that people die on boats from Java, and they die crossing the miserable mesquite plains of America’s south.
As Australia fails to break its long impasse on asylum seekers, a look at the situation in America may provide insight into the sorts of issues we could confront in five, 10 or 20 years, if for any reason our borders become truly overwhelmed. The notion of people settling illegally in large numbers in our suburbs is unthinkable to Australians. Yet America has had this problem for decades.
The tenor of the US immigration argument is different to Australia. Attacking illegal aliens can benefit a state politician, but neither side of federal politics wants to shake the tree too hard.
So many US businesses, particularly in the service industries, are utterly reliant on the labour of Latino people with questionable origins. Every American benefits from their presence, every single day.
From the time of Ronald Reagan until now, under Barack Obama, there has been a consistent federal reluctance to punish the millions of stateless children born to unauthorised arrivals inside the US.
These non-citizens have fought in Iraq and are still in Afghanistan. They attend schools and hold jobs. They are generally not held responsible for being born across a border. Nor does their Catholic religion trouble Americans.
Texas, which is the largest and richest US state and shares the longest border with Mexico, is in the hands of a Republican governor but stays silent on illegal immigration. It reacts against drug runners, but it does not make an issue of illegals: it needs them. California is the same.
In 2010, US Customs and Border Protection apprehended more than half a million unauthorised aliens. The federal government views these numbers as manageable but Arizona, which has fewer resources than Texas or California and is in the grip of a crime epidemic, sees itself as completely overwhelmed.
Arizona, believing that federal immigration authorities have failed to address unauthorised aliens, took matters in hand by giving its state police powers to arrest and detain suspected aliens, a third of whom enter America across its border.
By some accounts, they’re rednecks. By others, they’re drowning because Washington has chosen to let them carry the nation’s burden.
On Monday, the US Supreme Court killed off three of four Arizona laws by stating, in essence, that immigration was a federal, not a state, issue.
One of the dissenting judges, Antonin Scalia, said Arizona should be allowed to enforce its own immigration laws because the federal government had gone missing from the state.
We do not in Australia, yet, have issues with states trying to pass immigration laws. But that time may come if there is a flood of refugees from a major war, or even sooner if states become frustrated with the persistent inability of federal leaders to address the issue.
A question to ponder: who bears the brunt of Australia’s federal helplessness on asylum seekers? Is it the Commonwealth? Or is it the states?
As the feds fail to legislate, and run government by committee, the Australian states may start reexamining the very meaning of federation.
Not with plans to secede, or by creating laws to police asylum seekers, but the states could start to demand that the Commonwealth actually functions as a Commonwealth.
The states have a role in the asylum issue, because they increasingly accommodate people while they await processing. It would be good to see them become more forceful with our ever-quavering Commonwealth.
It was federal indecision that forced Arizona to act and the US Supreme Court, while knocking the state’s proposed laws back, was not without sympathy.
Justice Anthony Kennedy, delivering the majority judgment, noted that unauthorised aliens comprised 6 per cent of Arizona’s population and were responsible “for a disproportionate share of serious crime”, along with property damage and public safety risks.
The federal government is responsible for securing America’s borders and in 2010 – under the supposedly tolerant President Obama—forcibly removed 387,242 aliens, and persuaded 476,405 people to return south of the border.
These are the highest numbers of removals in US history but there has been little complaint because most were picked up on unrelated criminal matters. But Arizona wants more.
The US Government has channeled most of its border and immigration spending to Texas and California, leaving the Arizona border exposed and its cities suffering crime waves.
But the Supreme Court said that federal law must remain dominant and that states could not go about creating immigration policies by allowing police to act as immigration officers.
Arizona created a misdemeanor forbidding the “willful failure to complete or carry an alien registration document”. This became known as the “show me your papers” law.
The court overruled it, saying the penalty already existed in federal law. The very formation of the federation of American states was to create a “harmonious whole”, so that states would not replicate existing federal laws.
The second Arizona law had no federal counterpart, but the majority of judges still did not like it.
This provision made it a misdemeanor for an unauthorised alien to apply for work in Arizona.
Under federal law, it is the employer who is fined for employing illegals. The Arizona law attempted to reverse the blame. It was an ingenious legislative notion, given that established thinking in the US has been to target the employers who have been exploiting and underpaying Latino workers for decades.
The court found that the Immigration Reform and Control Act of 1986, introduced under Ronald Reagan, made “a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment”.
So they knocked that one back.
The third Arizona law provided that a state cop could, without a warrant, arrest a person if there was cause to believe the person had committed an offence that could cause him or her to be deported from the US.
But the court said that under federal law, it is (oddly) not a crime for a removable alien to be in the United States. A suspected alien may not be arrested, but given a time and date to appear at a hearing. If they do not appear, a deportation order can be issued.
This law, said the court, would have given Arizona police greater powers than federal immigration officers, who have a great deal of discretion on who should be deported.
“This would allow the State to achieve its own immigration policy,” said the court. “The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed.
“A decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made with one voice.”
Arizona got to keep its fourth law, at least for now. This allows for police to contact the federal Immigration and Customs Enforcement, or ICE, to determine the immigration status of a person they stop, detain, or arrest. But they may only do this if the person was picked up on a non-immigration matter.
The court believes this law comes with safeguards that would prevent cops treating all Latinos as suspects.
Detainees must not be presumed to be illegals if they provide a valid Arizona driver’s license or similar ID, and police may not make inquiries to ICE on the basis of “race, colour or national origin”.
At the heart of the decision is an attempt to ensure that the legitimate and huge Latino population in the US is not harassed as they go about their business.
The court said that power brings responsibility and that laws had to be based on “a political will informed by searching, thoughtful, rational civic discourse”. It said Arizona may be legitimately frustrated, but it could not undermine federal law.
A scathing Justice Scalia said the majority got it wrong. He said there was no reason why Arizona could not make it a crime for any illegal alien to remain in Arizona.
Scalia said the federal government had failed Arizona. “Are the sovereign states at the mercy of the Federal Executive’s refusal to enforce the nation’s immigration laws?” he asked.
The judge pointed out that while his court was considering the Arizona laws, the Secretary of Homeland Security, Janet Napolitano, announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30.
Those people could remain in unlawfully if they came to the United States under the age of 16; had continuously resided in the US for at least five years; had attended school or the military; and not been convicted of a serious crime.
US immigration officials were directed to defer any action against this group for a period of two years. In other words, until after the next election, when Obama had ensured the crucial Latino vote.
The judge was not amused by this cynicism. He said the federal government had abandoned Arizona, yet took a stick to it for trying to address its problems.
Justice Scalia doubted if the US states would ever agreed to have entered the Union if they knew there would be judgments like this.
“Arizona bears the brunt of the country’s illegal immigration problem,” he said. “Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy.
“Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so.
“Thousands of Arizona’s estimated 400,000 illegal immigrants — including not just children but men and women under 30 — are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.
“Arizona has moved to protect its sovereignty — not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively.
“If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign state. I dissent.”
It is sometimes said that dissenting opinions are the ones to watch. Australian states should examine Scalia’s opinion. The Commonwealth needs to be reminded that dysfunction undermines the harmonious whole.
Paul Toohey’s American Story column is available on Saturdays on News Ltd iPad apps.
tooheyp@newsltd.com.au
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