Republican and Democratic governors alike might need a tutorial on the concept of checks and balances, given the dismay they are expressing over the federal government’s lawsuit against Arizona’s SB 1070. Democrats are purportedly worried that it will hurt their chances in tough state elections, while Republicans are calling the lawsuit hypocritical because the federal government is litigating instead of legislating immigration.

Let’s review. As the lawsuit very clearly and eloquently lays out, the Constitution empowers Congress to regulate immigration. The President and his executive branch carry out the laws (and are given the discretion regarding how to exercise them). And when the states pass laws that conflict with this scheme, the federal courts are the referee.

So when the executive branch determines that a state law fundamentally upsets this scheme—in other words, violates the Constitution—the government needs to act. Sorry that the timing stinks. Sorry that Congress hasn’t done its job. Sorry that this may not play out very well with some members of the public who don’t understand that maintaining checks and balances requires action. Sorry that this makes Arizona out to be the constitutional bully that its state legislature is trying so hard to be. But the federal government is defending its constitutional right to regulate immigration law.

You have to wonder if the critics have bothered to read United States v. Arizona, which unfolds like a primer on the structure of the federal/state relationship. The lawsuit is a crisp and detached analysis of federal constitutional obligations and responsibilities regarding immigration and a point by point analysis of the manner in which SB 1070 violates and undermines that scheme. Moreover, it makes the very compelling point that immigration is inherently a federal responsibility precisely because it engages many competing national interests:

In crafting federal immigration law and policy, Congress has necessarily taken into account multiple and often competing national interests. Assuring effective enforcement of the provisions against illegal migration and unlawful presence is a highly important interest, but is not the singular goal of the federal immigration laws. The laws also take into account other uniquely national interests, including facilitating trade and commerce, welcoming those foreign nationals who visit or immigrate lawfully and ensuring their fair and equitable treatment wherever they may reside, responding to humanitarian concerns at the global and individual levels; and otherwise ensuring that the e treatment of aliens present in our nation does not harm our foreign relations with the countries from which they come or jeopardize the treatment of U.S. citizens abroad.

The suit argues that by enacting S.B. 1070, Arizona “attempts to second guess federal policies and re-order federal priorities in the area of immigration enforcement and to directly regulate immigration and the conditions of an alien’s entry and presence in the Unites States despite the fact that these are federal domains.” The suit notes that Arizona explicitly acknowledges that the intent of the law is attrition through enforcement (code for make the laws so harsh that people leave the state) which means that it is not taking into account any of the other vital immigration priorities and, in the process, undermines the federal scheme enacted by Congress.

Of course, under this analysis, the federal government has to fight back. As Maryland governor Martin O’Malley noted:

The president doesn’t have control over some of the timing of things that happen. When those things arise, you can’t be too precious about what’s in it for your own personal political timing or even your party’s timing. When matters like this arise, I think the president has to take a principled stand.

Ironically, that principled stand essentially means defending Congress’s right to pass federal law, even when it can’t or won’t do it. Rather than criticizing the President for moving forward on a crucial constitutional issue, Democrats should be kicking themselves for failing to be brave enough to take the issue on. And Republicans should stop throwing firebombs and start working on immigration reform.

Photo by jamess.