Davis: SC should follow Arizona's lead on immigration

So, immigration is back on the front burner in the news. For many of us, it never left, but it's nice to have the mainstream media back on board.

The reason, of course, is the lawsuit filed last week by the U.S. Justice Department challenging the constitutionality of Arizona's tough new law targeting illegal immigrants. The feds say that state law, which requires state and local police to question and possibly arrest illegal immigrants during the enforcement of other laws, usurps federal authority.

This lawsuit comes as no surprise. A few days earlier, President Barack Obama had sternly warned Americans in a national address about the dangers of a "patchwork" of immigration laws arising as "states and localities go their own ways."

The hypocrisy here is palpable. After all, the Obama Administration is openly friendly to "sanctuary cities" that act in open defiance of federal immigration laws and forbid their enforcement by local officials. That particular "patchwork" of immigration laws is just fine; cities and states, feel free to actively undermine federal law.

The crux of the federal government's current lawsuit against Arizona is "federal preemption," a court-declared doctrine that says states are prohibited from passing their own laws in areas where federal law already "occupies the field." Immigration, the fed's argument runs, is one of those areas.

But the federal preemption doctrine only precludes state laws that contradict and undermine the federal ones, not those that are consistent with it. Just two years ago, a U.S. district-court judge (upheld by the appeals court) rejected a challenge to Arizona's workplace enforcement law because it closely followed and did not contradict the federal law.

This is well-settled law. The U.S. Supreme Court held in 1976 that there is no indication in the federal immigration law "that Congress intended to preclude state regulation touching on aliens in general." And the Ninth Circuit, which covers Arizona, held in 1983 that "where state enforcement activities do not impair federal regulatory interests, concurrent enforcement activity is authorized."

Anyone who has bothered to read the new Arizona law will quickly understand that the permissive doctrine of "concurrent enforcement," not the prohibitive one of "federal preemption," applies. The law directly draws on federal statutes for its definition of immigration offenses and codifies the right of the state, repeatedly recognized by the federal courts, to make arrests for violations of federal immigration law.

So what's the problem? Well, perhaps it is that the feds calling the shots haven't read Arizona's new law. Unbelievably, Attorney General Eric Holder and Homeland Security Secretary Janet Napolitano admitted to not having read the state law even as they were vehemently denouncing it. Does anyone in Washington actually read legislation anymore?

But the more likely answer is this: The Obama Administration's problem with the Arizona law is not that it contradicts federal immigration law, but that it takes it too seriously. As Eric Holder's Justice Department has said, in a phrase that could have been lifted straight out of a George Orwell novel, it favors a "balanced administration of the immigration laws."

What does all of this mean for us in South Carolina, and how should our state legislature respond?

Well, first it should fully fund the tough illegal immigration law that it passed in 2008. Private businesses must now comply with stringent employee background checks, and this year's budget provides $2 million to pay for the state audits that will ensure compliance.

But our state legislature has not funded the part of the law that calls for a contract between the feds and the S.C. Law Enforcement Division to provide local governments with the training and facilities to arrest and process illegal aliens. Beaufort County Sheriff P. J. Tanner, has shown tremendous initiative in this regard, but he has limited resources. The state needs to properly fund this initiative.

Finally, South Carolina's legislature should enact an Arizona-type law to further empower local enforcement of federal immigration laws. I am a primary sponsor of such a bill (S. 1446) that was filed last May. We should not be deterred in the least by the federal government's recent challenge of Arizona's law. The opinions of each and every federal court decision on this issue support the authority of Arizona to enact its law. The current lawsuit is federal bullying, pure and simple.

It is important to realize this is not an academic question; the monetary cost imposed by illegal aliens to our state is simply staggering. The annual fiscal cost to South Carolina taxpayers for emergency medical care, education and incarceration for illegal aliens is currently estimated at $333 million per year and projected to increase to $615 million per year in 2020. State legislators have a duty to act, and following Arizona's lead is the right next step.

Tom Davis is the state senator for Beaufort County. He can be reached at tom@senatortomdavis.com.