Scorpions for Breakfast

by Jan Brewer

  The question of how the state of Arizona would defend itself against these suits was one of the more surreal parts of this saga. Our elected attorney general—my attorney general—was a Democrat named Terry Goddard who from day one had made no secret of his hostility toward SB 1070. Goddard would normally be the official responsible for defending the state against a lawsuit. The problem was that he had already declared the law “unconstitutional” and said that he would have vetoed it. And to top it off, he announced in January that he was running for governor on the Democratic ticket. That’s what I mean by surreal. Here I was, facing a federal lawsuit over the most controversial state law in the country, the state’s attorney general refused to defend us, and he was trying to take my job.

  Terry and I had been down this road before. A few months earlier, when Arizona joined the lawsuit against the president’s sweeping health care law, Terry had refused to join the challenge. I had to go to the legislature to get the authority to speak for the state in that lawsuit. Now the same thing was happening, but this time with a law duly passed by his own legislature and supported by 70 percent of his fellow Arizonans.

  Still, Goddard ridiculously insisted that he could defend the state against any challenge to the law. I insisted he could not. Having him in charge, I argued, would be like a lawyer saying that his client was guilty of murder but that he would defend him anyway. It didn’t make sense for me or for the state of Arizona, and I wasn’t going to have it.

  The last straw was when a team from the Justice Department came out to Phoenix, supposedly to brief us on how their “review” of the law was going. They had requested the meeting, and my legal counsel, Joe Kanefield, prepared to meet with them. It was an opportunity to try to talk them out of filing a lawsuit. But just before the meeting, Joe turned on the radio to hear Terry Goddard holding a press conference describing his meeting with the team from the DOJ. He had gone behind our backs and had a secret meeting with the very people who were threatening to sue us. That was it. We promptly issued a press release questioning the “curious coordination” between the Democratic candidate for governor and the Obama Justice Department. I called on Terry to recuse himself from the case. He eventually relented and removed himself from the case, but only after he had tied himself in rhetorical knots trying to argue that he was right on both counts: The law was unconstitutional, but he should still be the one to defend it in court.

  On July 6, 2010, the Obama administration formally filed its lawsuit. It named me alongside the State of Arizona as a defendant. I didn’t realize the enormity of it until the first day in court, when I heard the bailiff say the words “the United States of America versus the State of Arizona and Janice K. Brewer.” My country versus me! How did this happen?

  In my own view, America was the true defendant. This wasn’t U.S. v. Arizona and Janice K. Brewer; this was the Obama administration against the pro-U.S. state of Arizona. It would be absolutely incoherent to suggest that the United States was standing against itself—which is what the name of the case suggested. How could the United States stand against its own borders? How could it stand against its own values? It couldn’t.

  Simply put, the case was misnamed. It was Obama v. the People of the United States. Fully half of Americans opposed the DOJ’s lawsuit, with only 33 percent supporting it. And 61 percent liked the idea of their own state passing a law similar to SB 1070.

  I made a point of being in court for the hearings. I sat in the front row, right behind the counsel I’d hired to represent the state. I wasn’t going to let Terry Goddard try to defend a law he thought was unconstitutional, but I also didn’t want the taxpayers of Arizona to have to pick up the cost of another lawyer. So I set up a legal defense fund—KeepAZSafe.com—to raise money to pay for our lawyer. Supporters were already sending us money, and I thought this would be a good use for it. Every time I went on Greta Van Susteren’s show and mentioned the fund, contributions would pour in the next day. They came from all over the country. It was very, very encouraging to see the support we had.

  The press tried to make an issue out of the fact that I personally attended the court hearings. They said it was grandstanding. But I replied that I needed to be there to represent the people of Arizona, who overwhelmingly supported the law. Also, I said, the Obama administration had gone out if its way to name me as a defendant, and defendants have the right to confront their accusers. That seemed to quiet them down.

  I had a front-row seat for the Obama administration’s case against SB 1070, and from a legal perspective it was absolutely absurd. The lawsuit is what’s known as a “peremptory challenge,” meaning that the administration was contending that the law was invalid before it had a chance to go into effect. We had hoped that they would wait to see whether all the careful protections against racial profiling that we had built into the law and the executive order accompanying it would work. That was what they had said they were concerned about: racial profiling. We had taken their concerns seriously and carefully crafted a law that explicitly prohibited profiling. Why not seek to redress any issues at the enforcement stage? That was how the federal oversight process was supposed to function, instead of abrogating the duly enacted will of the people of Arizona.

  I know now that the Obama administration was never interested in seeing whether SB 1070 could actually work as designed. Heck, maybe they were afraid it would work too well. I think they wanted to send a message to all the other states that were thinking about passing a similar law—as well as to Hispanic voters in other states, and to the world at large. After all, if enough states started enforcing federal immigration law, eventually the law would actually mean something, and I don’t think they ever wanted that.

  The surprising thing was, after all the talk about racial profiling, when the Obama administration finally filed its lawsuit, it was based on completely different grounds. After raging for months about civil rights and discrimination against Hispanic families going out for ice cream, when push came to shove, they made the fairly technical argument that our state law was unconstitutional because it was preempted by federal law. They cited the supremacy clause of the Constitution, which states that federal laws made under the Constitution “shall be the supreme law of the land” and that states cannot trump federal law. This makes sense: We wouldn’t want states to be able to simply override every law made by the federal government. Otherwise it would have no power at all. As Alexander Hamilton said in the Federalist Papers, the supremacy clause “only declares a truth, which flows immediately and necessarily from the institution of a federal government.”

  So how could the government use this clause to argue that our state law, which essentially enforced federal law—and whose language was taken directly from the federal statute—was unconstitutional? They were forced to argue that the federal government and the state of Arizona had different ideas regarding what enforcement means. Which is to say, they made the revealing argument that SB 1070 enforced the law too much.

  The DOJ singled out one provision of the law to make this case. SB 1070 allows Arizonans to collect money damages—to sue—by showing that any state official or agency has adopted a policy that “limits or restricts the enforcement of federal immigration laws . . . to less than the full extent permitted by federal law.” On the face of it, this provision is designed to push “enforcement of federal immigration laws.” So what’s the problem? By enforcing federal immigration law, the feds argued, we were pursuing “only one goal—‘attrition’—and ignor[ing] the many other objectives that Congress has established for the federal immigration law.” But what other objectives are there to our illegal immigration law besides preventing and punishing illegal immigration? It was an insane argument.

  What the Obama administration was arguing was that Arizona’s enforcement of federal immigration law violated federal immigration law because the federal government had chosen not to enforce federal immigration law. Got it? In other
words, Congress can pass a law, and the enforcement arm of the executive branch can decide not to do anything about it. Moreover, they argued that their decision not to enforce the law has the same legal authority as what was actually passed in writing. In effect, then, by passing federal laws, the feds can prevent states from passing their own laws on the same issue. Then, by not enforcing the very federal laws they’ve passed, the feds can prevent the states from enforcing the federal laws.

  For example, let’s say that the federal government decided to pass a law preventing people from growing marijuana. Then they decided they didn’t really care about marijuana, so they weren’t going to do anything to enforce the law. Your state then decides to do the job the feds won’t, and sends police officers to raid a local pot farm. The federal government can now argue that the state was violating federal law by enforcing federal law.

  The feds didn’t stop with this insane argument. They also fell back into the “racial profiling” nonsense we’d debunked time and again. But to do that, they had to engage in a series of ridiculous hypotheticals. They claimed that the law would “cause the detention and harassment of authorized visitors, immigrants, and citizens who do not have or carry identification documents.” Really? Federal law already requires that immigrants carry proof of their legal status. And as for legal residents and citizens, when was the last time you got stopped by a police officer without your license or ID and weren’t harassed or detained?

  They also said the law would “interfere with vital foreign policy and national security interests by disrupting the United States’ relationship with Mexico and other countries.” On this one, they were sort of telling the truth, seeing as how Mexico doesn’t want to do anything to shut the border. In fact, the feds cited President Calderón’s demagogic speech before Congress as evidence that SB 1070 “subjected the United States to direct criticism by other countries and international organizations.” So criticism from other countries suddenly qualifies as a reason to strike down a law, according to the Department of Justice. The impact on foreign policy of a state law is utterly irrelevant to its legality under the Constitution. Many domestic laws have an impact on international relations; that doesn’t mean they’re all unconstitutional.

  The foolishness continued as the lawsuit went on. The Department of Justice claimed that the Obama administration understood our concerns and had “undertaken significant efforts to secure our nation’s borders”—nice-sounding words from an administration that had repeatedly ignored our pleas for aid and was now seeking to punish us for taking matters into our own hands. They further claimed that by asking for ID after a legal stop for another offense, we’d be placing burdens on immigrants who might be in the country legally but without papers because they hadn’t received them yet. This hypothetical case was so weak that the government itself had called a similar argument in a different case “patently absurd,” saying that it would result in “wholly emasculated law enforcement.” They also argued that we were regulating immigration, when in fact we were regulating law enforcement’s approach to illegal aliens—meaning that we were concerned only with people who were already in violation of a criminal offense. SB 1070 doesn’t deal with who should remain in the United States or who is here legally—that’s the feds’ job.

  What most revealed the desperation of the Obama administration’s case was what its lawsuit didn’t argue—namely, that the law violated the Fourteenth Amendment, the part of the Constitution that ensures the equal protection of the law. The Fourteenth Amendment is often invoked in civil rights cases, because such cases normally charge that certain individuals aren’t being treated equally under the law. Obama, Holder, and Napolitano had all specifically complained that the law was inevitably going to violate some people’s civil rights—that it was going to discriminate based on race or ethnicity—but in the end they didn’t invoke the one clause of the Constitution that is most often cited in such cases. Weird, right?

  Not really. They knew there was no civil rights violation here, especially since I had signed an executive order that specifically dealt with implementing SB 1070 in a nondiscriminatory manner. Instead, they based their entire case on the claim that the law was unconstitutional because it was preempted by federal authority.

  The truth is that the Arizona law is deeply rooted in constitutional principles. The Constitution gives Congress the power to “establish a uniform Rule of Naturalization,” which can be interpreted to encompass the power to control the borders. Furthermore, the whole purpose of the federal government is to “provide for the common defense” and to “insure domestic tranquility,” which in turn requires the feds to ensure the safety of citizens with regard to border issues. Even more to the point, as I’ve mentioned, Article IV, Section 4, says that the federal government “shall protect each of [the states] against Invasion.” That’s what we in Arizona are undergoing—an invasion across our borders.

  Let me be clear (as the president likes to say): The federal government has the obligation to secure our border. But if the feds decide to act as if they don’t, the states don’t have to lie down and take the consequences. According to the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Now, if the feds want to argue that they don’t have that obligation under the Constitution, then under the Tenth Amendment, Arizona obviously should take control of its own destiny. We have a duty to our citizens, and if the feds choose to abdicate theirs, we are not obliged to do the same. Yet that was precisely what the Obama administration was arguing: They didn’t have to take responsibility for the border, but we couldn’t, either. In the end, what was really at issue in the government’s case was simply the assertion of their monopoly of power—a power it defined as essentially arbitrary.

  There was one line in the lawsuit that I thought summed up the administration’s case more clearly than any other. The Arizona law, it said, “conflict[s] with and undermines the federal government’s careful balance of immigration enforcement priorities and objectives.” Our “priorities and objectives” in passing SB 1070 were to enforce the law and have another tool to secure the border. The Obama administration was not only admitting that it had different priorities. It was asserting that the federal government knows best, that its assessment of priorities is based on superior judgment, and that the states just have to live with the results.

  I couldn’t help but be reminded that the same arrogant bureaucratic mentality had created this problem in the first place, when anonymous federal bureaucrats decided to funnel the stream of illegal immigration toward the Arizona border. They had done this without consulting us, made no provision for our safety and security, and ignored our repeated requests for assistance, and now they had declared war on us by way of the press and the courts for trying to deal with the problem ourselves. Behold your federal government at work!

  As I read the government’s lawsuit, it came to me that this fight isn’t about “preemption,” federalism, or even civil rights. It is about what kind of country we’re going to have.

  When he wasn’t warning about the dangers of racial profiling, President Obama has consistently argued that laws like SB 1070 would create a “patchwork” of state immigration laws that would bring chaos to the system—as if the system could get more chaotic. I’ve always found it interesting that SB 1070, which merely enforces existing federal law, creates a dreaded “patchwork,” while the laws passed by cities such as New York, Chicago, and San Francisco to declare themselves “sanctuary cities”—where police are explicitly barred from inquiring about immigration status and enforcing the law—haven’t raised a peep of protest. The message being sent is very clear: “Patchworks” are bad when state and local laws merely reinforce the federal law; but when they purposefully subvert the federal law, they’re no problem at all.

  I’ve thought for a long time about
the reason behind this double standard. A lot has been written and said about how President Obama’s treatment of immigration—and plenty of other officials’ as well—is purely political, that it’s just aimed at the next election. And there’s no denying that the administration’s lawsuit came along at a time when the president’s approval ratings among Hispanics were falling, after he’d failed in his promise to address immigration reform during his first year in office. But I think we let the president and his liberal allies off too easily when we ascribe their motivation to mere politics. There is a point at which politics becomes policy, and policy determines the kind of country we have.

  What I mean to say is that the cynical politics of immigration has real-world consequences for our country—intended consequences. Eventually, the government’s failure to secure the border becomes a policy of purposefully not securing the border, a policy of actively encouraging illegal aliens. That’s where I think our government is today.

  Take the unions, which have been the main organizational and financial force behind the fight against SB 1070. They were the ones Astroturfing the protests and sending buses to my house and protestors to the White House for my visit with President Obama. On the face of it, of course, their concern with protecting illegal immigration doesn’t make sense. Union workers have some of the best-paid jobs in the United States, with great benefits, and they’re the first people whose position gets undermined when businesses hire illegal aliens to do the work Americans supposedly “won’t do.” Samuel Gompers, who founded the American Federation of Labor, saw that back in 1924 when he wrote, “Every effort to enact immigration [reform] must expect to meet a number of hostile forces and, in particular . . . corporation employers who desire to employ physical strength . . . at the lowest wage and who prefer a rapidly revolving labor supply at low wages to a regular supply of American wage earners at fair wages.”