Troops to the Border

Has Eric Holder finally read the Arizona Immigration Law?

The Obama Administration announced on Tuesday that it is sending 1,200 National Guard troops to assist with immigration control, notably along the Arizona border with Mexico. The move represents an unstated victory for the much-maligned Arizona Gov. Jan Brewer and her state legislature, whose recently passed immigration law, assailed by critics as a remarkable assertion of state authority to secure borders, was at least in part an indictment of the federal government’s failure to do precisely that job. Sending in troops to secure the border is an acknowledgement that Arizona was right, after all.

Louisiana Gov. Bobby Jindal, faced with the mounting natural disaster occasioned by the month-long Deepwater Horizon oil spill in the Gulf of Mexico, may want to take notice of how quickly a significant federal military response to a national crisis can be implemented. Indeed, a state just needs to act forthrightly within the constitutional limits of its police power to fill the vacuum of leadership caused by a paralysis of will in Washington.

Arizonans, across party lines, had requested the troops months ago. Democrat Rep. Gabrielle Giffords had asked Washington for the troops after the March 27 murder of Robert Krentz, whose family and 35,000-acre cattle ranch had been inducted into the Arizona Farming and Ranching Hall of Fame only two years earlier. Krentz, whose prominent family had been in cattle ranching for nearly a century, had reported that illegals crossing his land had cost him nearly $8 million in damage just during the years 2000-2005. Arizona’s Attorney-General, also a Democrat, wrote the Obama White House on April 20 for National Guard assistance. Meanwhile, the state’s two U.S. Senators, Republicans Jon Kyl and John McCain, both had asked for 3,000 troops a month ago. Indeed, McCain now wants 6,000 along the border.

Along came Arizona Senate Bill 1070 (SB 1070), as amended by House Bill 2162. Then the public opinion surveys. Suddenly, Obama was persuaded to send in the cavalry.

SB 1070 is hardly remarkable. Consistent with settled federal Constitutional precedent dating back 42 years to Terry v. Ohio, 392 U.S. 1 (1968), the new Arizona law merely codifies that state law enforcement officials may make a “reasonable attempt” to ascertain a person’s lawful status in America when that person already has been lawfully stopped, detained, or arrested – but only when a “reasonable suspicion exists” to suspect the person is here illegally. (How else, for that matter, did federal immigration officers in Postville, Iowa, determine precisely which 300 employees at the Agriprocessors slaughterhouse were illegally in America?)

Even so, the Arizona law explicitly warns law enforcement that they “may not consider race, color or national origin” when implementing the law. For anyone here legally, the law hardly differs from allowing a traffic cop to ask for your driver’s license at a lawful stop because all legal aliens carry proper documentation with them, as mandated by federal law. 8 U.S.C. § 1304(e).

Attorney-General Eric Holder, who had been condemning the Arizona law, told Congress last week that he still had not read it. Perhaps he finally has worked his way through its ten pages and advised his boss that Washington better do something to recapture the immigration enforcement debate because SB 1070 probably will pass Constitutional muster. In finally responding to widespread public pressure – the Arizona law is wildly popular throughout America – with a partial military deployment to bolster a desperate front in the nation’s effort to protect the Homeland, President Obama has afforded us a “déjà vu moment.”

We have seen this Obama drama before. His announcement is eerily reminiscent of Washington’s three-month delay last year in responding – and, then, only with a partial, politically handcuffed deployment – to Gen. Stanley A. McChrystal’s increasingly public pleas last autumn to send 40,000 troops to bolster American efforts aimed at suppressing the Taliban in Afghanistan. Gen McChrystal pleaded for troops, finally getting only some of what he sought after a months-long delay. And this only after he took matters into his own hands, breaking protocol to back the President into a corner.

In McChrystal’s case, he finally went public in late September 2009 with the substance of his 66-page August 30 request for troops. Obama, after dressing down his four-star general for deviating impatiently from protocol and forcing the President into that corner, finally acted on December 1 – virtually three months later – with a partial fix: most of the requested troops, but handcuffed in their objective by the President’s announcement at West Point that they would be withdrawn from the Afghanistan theater a year later.

The pattern is repeating in Arizona. As a brief film posted by the Center for Immigration Studies (CIS) demonstrates, America’s southern border along Arizona is outright porous. It seems harder to enter a movie theater without a ticket than to cross Mexico illegally into Arizona. The CIS further reports, inter alia, that some 460,000 illegals presently reside in Arizona; that as many as 22 percent of all felonies in Maricopa County are perpetrated by illegals; that illegals comprise approximately ten percent of the county’s adult population; that illegals comprise 11 percent of the state prison population; and that approximately one of every six people arrested by the Border Patrol in the Tucson area have prior criminal records in the U.S. No wonder the new measure’s supporters outnumber opponents by three-to-one in Arizona.

As it did towards McChrystal’s continuing pleas to bolster the Afghanistan front, the Obama White House dallied for more than two months in the face of desperate bipartisan pleas for troops to protect the Arizona-Mexico border – actually dallying for more than a year on the challenge to demonstrate some leadership on the issue – finally agreeing only piecemeal to dispatch a mere forty percent of the military muscle most recently sought, and only to provide intelligence and surveillance but not to participate in direct enforcement. Cochise County sheriff Larry Dever has noted that the deployment provides only one Guardsman for every two miles of security fence, and – assuming the standard three shifts over a daily 24-hour period – actually only one troop for every six miles. Rep. Harry Mitchell, an Arizona Democrat, was equally dismayed: “I believe we need much more,” he said. “Arizona continues to pay a huge price for the federal government’s failure to secure the border.” Another Arizona Democrat, Rep. Ann Kirkpatrick, also chided the White House: “[M]uch more needs to be done. It will take more than just 1,200 additional troops to get the border under control.”

And so we watch a hapless Administration in Washington, awarded a Nobel Peace Prize by European admirers and cluelessly obsessed with pursuing an agenda of all the wrong priorities.

Indeed, the stumbling in the dark has included everything from winning the right to host the Olympic Games in Chicago to endangering the fragile national economy and job market by pursuing costly and scientifically dubious climate-control strategies to revamping an excellent national healthcare system into a morass that Americans do not want and at a price we cannot afford. All of this while the White House fails to grasp the first responsibility of government: to protect Homeland security.

At a minimum, that responsibility includes sealing the porous border with a comprehensively planned federal strategy that does not rely patchwork on states doing Washington’s job, and proactively preventing terrorist attacks on these shores rather than racing to Mirandize admitted Al Qaeda bombers. The fate of Democratic incumbents in the recent primary elections is a sign of what’s in store for the president’s party if his administration continues on its present course of appeasing every constituency in the world except for the lawfully documented American people.

Dov Fischer is a legal affairs consultant and adjunct professor of the law of civil procedure and advanced torts. He was formerly Chief Articles Editor of UCLA Law Review and writes extensively on political, cultural, and religious issues.  He is author of general Sharon’s War Against Time Magazine and blogs at