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The Obama administration’s decision to sue Arizona over its newly adopted immigration law provoked howls of outrage from Republicans around the country.
While the Justice Department said the lawsuit was needed to avoid racial profiling and stake out the federal government’s role in setting immigration policy, Republican National Committee Chairman Michael Steele called it "another instance of hollow, political gamesmanship from a White House unwilling to take the bold action necessary to solve one of the country’s most pressing issues." House Republican Leader John Boehner of Ohio opined that border violence is "out of control," and that states have "a right and responsibility to ensure order and the safety of their citizens, especially when the federal government is asleep at the wheel."
Even 13th District Congressional Candidate Tom Ganley of Brecksville got into the act, authoring a column on his campaign website blog that asks: "Why is the Obama Administration Suing Arizona?"
Like Boehner, Ganley said states should step in if the federal government isn’t enforcing immigration laws.
"Interestingly, the Arizona law basically parrots the federal immigration law," Ganley continued. "I wonder what part of the federal law the Obama Administration doesn’t like?"
Ganley’s claim about the Arizona law parroting federal immigration law itself parrots statements that conservatives have made since the Arizona law was adopted.
We looked at a version of the claim that that columnist George Will floated on an April 25th talk show.
"What the Arizona law does is make a state crime out of something that already is a crime, a federal crime," Will opined on ABC This Week.
Legal scholars we talked to highlighted two key sections of Title 8 of the U.S. Code, which duplicate the "meat" of the new Arizona law.
Section 1304e of the federal law requires that "every alien, 18 years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him." Those who fail to comply will be guilty of a misdemeanor and will be fined $100 and can be imprisoned up to 30 days.
Section 1306a of the federal law says that, "Any alien required to apply for registration and to be fingerprinted in the United States who willfully fails or refuses to make such application or to be fingerprinted, and any parent or legal guardian required to apply for the registration of any alien who willfully fails or refuses to file application for the registration of such alien shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not to exceed $1,000 or be imprisoned not more than six months, or both."
The new Arizona law makes it a state crime if immigrants are in violation of either of those codes.
Gabriel Chin, a professor of law at the University of Arizona, said that the claim is generally correct, but those sections of the law are "among the least prosecuted in the U.S. Code."
"For the relevant offense at issue here, failure of a non-citizen to register in violation of 8 U.S.C. 1306(a), there were five convictions across the U.S. in FY 2008," Chin said in an email to PolitiFact. "So to be precise, the statement would be 'What the Arizona law does is make a state crime out of something that already is . . . a federal crime that the federal authorities have chosen not to enforce except in rare circumstances.'"
In fact, proponents of the Arizona law have argued that's why new state immigration rules are needed; federal authorities are not doing a consistent job of enforcing immigration laws that are already on the books.
So, in the two cases above, the bill does make what are already federal crimes state crimes.
There are other parts of the new law that also overlap with federal statute. For instance, section 5 of the Arizona law, which deals with the transportation of non-citizens, is nearly identical to section 1324 of Title 8 of the U.S. Code.
However, the Arizona law does break new ground. For example, Section 5 also would make it illegal to pick up day laborers on the street for hire, "which has nothing to do with federal law. It's essentially a traffic law," Chin wrote. Those violating this section are guilty of a misdemeanor. And it also makes it a crime for an illegal immigrant to solicit work.
Mary Giovagnoli, director of the Immigration Policy Center, pointed out another aspect of the bill that she finds particularly troubling: Section 2 of the Arizona law would allow citizens to sue local and state authorities if they do not believe the new law is being enforced effectively. State and local authorities could be fined between $1,000 and $5,000 a day for each day the policy remains in effect.
The bill also includes new language about how the law applies to employers and specifies the circumstances under which an officer can question and arrest someone he or she thinks is in violation of the law.
When it comes to some of the most talked about parts of the law, having to do with aliens who fail to carry proper paperwork and failing to register, Ganley is correct about the core of the law; federal statutes already makes those two provisions a crime. But the law also includes a new prohibition barring picking up day laborers on the street for hire and soliciting for work. That's not in the federal code. As a result, we find the claim to be Mostly True.
Republican National Committee, news release, July 6 2010
House Minority Leader John Boehner, news release, July 6, 2010
Politifact.com, Will says Arizona law merely echoes federal immigration statutes, April 28, 2010
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