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Holder’s ‘In the Dark’ Criticism of Immigration Law

Our attorney general didn't bother to read the Arizona statute but railed against it just the same.

by
Dan Miller

Bio

May 17, 2010 - 12:00 am

On May 13, Attorney General Eric Holder, who had been critical of the new Arizona immigration law, testified that he had based his comments on newspaper and television accounts but had not read the by then more than two-week-old statute:

Attorney General Eric H. Holder Jr., who has been critical of Arizona’s new immigration law, said Thursday he hasn’t yet read the law and is going by what he’s read in newspapers or seen on television.

Mr. Holder is conducting a review of the law, at President Obama’s request, to see if the federal government should challenge it in court. He said he expects he will read the law by the time his staff briefs him on their conclusions.

“I’ve just expressed concerns on the basis of what I’ve heard about the law. But I’m not in a position to say at this point, not having read the law, not having had the chance to interact with people are doing the review, exactly what my position is,” Mr. Holder told the House Judiciary Committee. (emphasis added)

The Arizona statute was signed by the governor on April 23 and amended on April 30 by HB 2162 to remove ambiguities relating to when people can be stopped and identification sought. It was also clarified to ease concerns about profiling based on race, color, or national origin.

The partial text of the law as amended is provided in the previous link, along with links to the remaining parts. Section 11-1051 B, about which there has been much erroneously focused anger is below. (Words deleted are indicated by strike-throughs and words added are in bold:

For any lawful contact stop, detention or arrest made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the person is an alien who and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person’s immigration status determined before the person is released. The person’s immigration status shall be verified with the federal government pursuant to 8 United States code section 1373(c). A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not solely consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution. A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following:

1. A valid Arizona driver license.

2. A valid Arizona nonoperating identification license.

3. A valid tribal enrollment card or other form of tribal identification.

4. If the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification.

On May 10:

Attorney General Holder, reflecting similar comments from the president, worried that the law would create “a slippery slope where people will be picked on because of how they look as opposed to what they have done.”

If the law is applied as written, that simply cannot be the case. Also on May 10:

“We are considering all of our options. One possibility is filing a lawsuit,” Holder told NBC‘s Meet the Press. Possible grounds for the lawsuit would be whether the Arizona law could lead to civil rights violations, he said.

There have been widespread boycotts and more are apparently in the offing. Hollywood has gone ballistic. There have been protests in Honduras and throughout Latin America, where the new Arizona law has been widely denounced:

The South American presidents that signed the declaration included Brazil’s Luiz Inacio “Lula” Da Silva; Uruguay’s Jose Mujica; Ecuador’s Rafael Correa; Paraguay’s Fernando Lugo; Chile’s Sebastian Pinera; Bolivia’s Evo Morales; Venezuela’s Hugo Chavez; and Argentina’s Cristina Fernandez. Foreign ministers represented by Peru, Colombia, Surinam and Guyana also co-signed the declaration.

The Organization of American States has also denounced the law.

That well regarded friend of human rights, Venezuelan President Hugo Chávez, has demanded that it be repealed. In Oakland, California:

City Council members voted 7-0 Tuesday to boycott Arizona and Arizona-based businesses, joining a growing movement against the state after it passed a far-reaching anti-illegal immigration law. …

“How do you know if someone is illegal?” said City Council President Jane Brunner (North Oakland). “They can’t answer that question in Arizona. Is it when someone’s in a coffee shop? Is it when they’re walking their child to school? Is it when they’re standing on the corner waiting for work?”

The Arizona law, the full text of which is linked above, deals with these matters. Ms. Brunner would be well advised to read it.

Mr. Holder was, of course, under no obligation to read the statute as originally written or as amended, nor was he under any obligation to speak publicly about it. However, for him to speak publicly and critically about the bill without having bothered to read it, and base his critique only on the basis of newspaper and television reports — most likely by people who had not bothered to read it either — was extraordinarily irresponsible. It was doubly so because the new Arizona law deals with problems created in a border state by the abject failure of the federal government to enforce the law, and seeks, to the extent possible, to fill the vacuum created by that failure.

Mr. Holder is not the only government official with a penchant for commenting adversely on statutes and judicial decisions without having bothered to read them. He stands out because he is the official chief attorney of the United States. Obviously, his words on legal matters have more clout than those of any other administration official, except perhaps the president, whose lead he apparently follows and who had not bothered to read the new law either. Or, if he had read it, ignored what it says and chose to engage on his own now common form of racial profiling to create political capital with it.

There may be excuses for members of the Congress to avoid reading lengthy and complex legislation before voting on it. I don’t accept those excuses, but understand them because a lot of legislation is difficult to read and even more difficult to understand. The largely unread health insurance reform law is a prime example, and despite Speaker Pelosi’s flippant comment that we would know what was in it after it had been passed and signed, we continue to read of unanticipated and possibly unintended consequences. The same is true of the “we gotta save the economy quick!” bailout legislation, and the same will most likely be true of the Wall Street reform legislation and climate change legislation.

If our masters can’t be bothered to read even short and reasonably understandable laws such as the Arizona immigration law before commenting and helping to set the media aflame about them, and can’t be bothered to read legislation before voting on it and signing it into law, perhaps they should strive for shorter and less complex legislation instead of trying to deal with all perceived problems simultaneously in massive and massively confusing legal morasses.

Dan Miller graduated from Yale University in 1963 and from the University of Virginia School of Law in 1966. He retired from the practice of law in Washington, D.C., in 1996 and has lived in a rural area in Panama since 2002.
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