It has been laughable to see the left erupt in sanctimonious fury over Donald Trump’s pardon of former Sheriff Joe Arpaio. The theme of the eruption is that the presidential pardon violates the rule of law principle. Anyone who endorses the pardon, we are told, forfeits his good standing with the Rule of Law Brigade, and Republicans should be ashamed of themselves.
Of course, a presidential pardon is, in every sense, a rule of law action. The president is empowered by the U.S. Constitution to issue pardons. I thought it was unconscionable of Barack Obama to commute the sentence of FALN terrorist and murderer Oscar Lopez-Rivera, but I wouldn’t pretend he was violating the rule of law by doing it.
(Don’t miss Ben Bowles, by the way, on the absurd “tweet of the day” from Ben Rhodes about the Arpaio pardon.)
Interestingly, meanwhile, if you asked most critics what Arpaio was convicted of, they couldn’t tell you. They’d probably say something vague about “profiling.” That’s what all the headlines have been proclaiming,
But when you review the history, you find that Arpaio was not convicted of profiling. He was found guilty by a federal judge, in July 2017, of criminal contempt of court for failing to comply with another judge’s order in a 2007 civil case. The contempt crime is a misdemeanor for which the maximum sentence is six months in jail.
In 2016, Arpaio had previously been found guilty of civil contempt of court for that same offense. The 2016 finding was based on a 2011 injunction from the civil-suit judge, G. Murray Snow, ordering Arpaio and the Maricopa County Sheriff’s Office (MCSO) to desist from practices they had undertaken back in 2006-07 to crack down on the rapidly expanding presence of illegal migrants in Maricopa County. The illegal migrants had created a growing problem of crime and vagrancy, a worrying trend for businesses, property owners, and law-abiding citizens.
The eventual convictions in 2016 and 2017 centered on three counts of contempt for failing to comply with the judge’s order.
Something the sudden rule-of-law zealots don’t mention is that the MCSO crackdown was not only requested by members of the community, but was based on deputization by ICE under provision 287(g) of the U.S. Immigration and Nationality Act, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (adopted, obviously, during the Clinton administration).
The use of 287(g) from 2006 on, and MCSO’s participation in the program, were lauded at the time – including by Janet Napolitano, then governor of Arizona – and held up as examples of effective immigration enforcement cooperation.
The zealots also fail to mention that the finding of “profiling” came in the 2007 civil suit, which was brought by legal activists representing a handful of legal-status plaintiffs in what they hoped would become a lucrative class-action case. The 2011 injunction, in other words, didn’t have to meet the standard of a criminal conviction. The same is the case for Judge Murray Snow’s final ruling in May 2013 that Arpaio and MCSO had engaged in profiling.
(You can read the 2011 injunction ruling here for a flavor of the issues, shades of meaning, and hair-splitting involved in finding that “profiling” had occurred. As a matter of the philosophy of law and the rule of law, the concept of profiling, although arguably necessary to preserve civil liberties, is neither cut-and-dried nor applied in consistent ways in the judicial system. The Ninth Circuit Court of Appeals in 2015 upheld Snow’s subsequent 2013 ruling, but, again, this was a civil case, not a criminal one. It did not result in criminal penalties but in a decree ordering training, revised departmental practices, and federal monitoring.)
The criminal conviction of Arpaio was not for “profiling”; it was for allegedly failing to comply with elements of the judge’s 2011 order to cease the MCSO crackdown measures.
Even that element of the story has its murky aspect. Arpaio and the other defendants in the criminal complaint argued throughout both the civil and criminal contempt proceedings that they acknowledged errors and failures in compliance with the 2011 order, but that the failures were unintentional.
Your choice, of course, whether to believe them or not. The judge found otherwise. But the judge in the criminal proceeding, Susan Bolton, refused to put the matter to a jury trial, as Arpaio requested, ordering a bench trial instead. (Because the crime in question is a misdemeanor, the judge had that discretion.) It can at least be reasonably suspected that Bolton didn’t want to risk a jury’s statistical likelihood of finding for the law enforcement officers, in a matter of gray-area questions and interpretation.
The Obama administration’s comprehensive policy shifts
There’s one other thing the sudden rule-of-law zealots won’t tell you. Consider that this legal process started in 2007, with the civil suit against Arpaio. Arpaio and the MCSO were operating under the 287(g) program at the time, with widespread approval from the public. What happened between then and today to put the MCSO in such bad odor with the federal government?
The Obama administration took over. It initiated a Justice Department investigation of Arpaio and the MCSO almost immediately, in March 2009. It terminated the MCSO participation in the 287(g) “task force” program with ICE in October of 2009 – and that withdrawal of cooperation became a key element of Murray Snow’s December 2011 finding that the MCSO was acting outside its authority by “profiling” in order to identify illegal migrants. When acting as federal deputies, sheriff’s officers could do things they could no longer do once their 287(g) participation had been revoked.
Snow’s 2011 injunction was issued in response to the 2007 civil suit. But it folded in MCSO actions from after the 287(g) termination, by a new administration, two years later. It also referenced findings from the Obama DOJ investigation, which had been started in the interim between the 2007 lawsuit and the 2011 ruling. Hans von Spakovsky gave the DOJ investigatory findings a low grade, pointing out that they came from hearsay (e.g., news reports) and statistics for which no context was offered.
Obama proceeded to cut funding dramatically for 287(g) program activities, which in several jurisdictions had produced significant reductions in the number of crimes committed by illegals (e.g., in Davidson County, Tennessee).
In 2014, Obama also inaugurated his selective enforcement programs allowing illegal migrants to remain in the U.S. and obtain work permits, in defiance of federal immigration law. There were a number of federal rulings against his actions, including injunctions from lower courts which he ignored.
The Obama administration, overall, took a lax enforcement posture on immigration – and an adversarial role against Joe Arpaio and the MCSO. There is at least a possibility that the MCSO would not have been found to be engaged in profiling in the 2011 and 2013 civil-suit rulings, if the Obama DOJ had not opened its separate investigation in 2009 and alleged legally questionable “evidence” of profiling.
With Judge Snow’s federal monitoring decree in operation, it was arguably overkill to pursue Arpaio in first a civil contempt case, and then a criminal one, for actions taken by the MCSO prior to the decree.
That said, however, the political trend of the Obama administration isn’t at issue only in the eventual contempt convictions for Arpaio.
What that political trend gets back to is the rule of law, which anti-Arpaio pundits now accuse his supporters of not caring about. This shot is as cheap and hypocritical as it gets.
According to U.S. immigration law, none of the people whom Arpaio and sheriffs across the country routinely find to be here illegally are supposed to be here at all. The American people understand their immigration law to mean what it says, and to be enforceable on that honest, straightforward basis.
Yet it has not been enforced on an honest, straightforward basis. The Obama administration is by no means the only culprit; enforcement laxity has been a problem for many years, under both Democratic and Republican presidents. Arizonans were desperate for better enforcement in the mid-2000s because the Bush 43 administration was laggard in that regard.
There is hardly any posture less suitable for lecturing others on the rule of law than that of favoring lax immigration enforcement. For long stretches of time over the last half century, it has been reasonable to say that U.S. immigration laws are largely a big charade, designed to deceive the American people that something lawful is being done about the inflow of illegal migrants.
It’s not the rule of law that has resulted in upwards of 12 million people being in the United States illegally – it’s the exact opposite.
The true cost of gutting the rule of law
The dysfunctions of this anti-rule-of-law situation are many, and quite a few of them affect immigrants even more than native-born citizens. If not for the refusal to enforce our immigration laws, for example, many Americans would be better disposed toward increasing legal immigration. It is a hysterical canard to insist that Americans are blindly prejudiced about “immigrants.” Americans’ long experience with immigrants has had many positive aspects, and has shaped an attitude that we can assimilate immigrants successfully, with benefits for everyone, as long as they come in the front door.
But failing to honor the rule of law in immigration enforcement has fatally polluted that dialogue, along with many others. It has also soured many people of goodwill on the prospects of the rule of law in general.
Illegal migrants get away every day with things no legal citizen could. Through the abusive misapplication of government power, illegal migrants have effectively become a more-than-equal protected class, allowed to escape prosecution for hundreds of offenses both large and small that would ruin the lives of legal Americans.
As usual with these unequal impacts, they fall hardest on America’s poorest people. And that includes legal immigrants, especially in their earliest years in the country. If you come in the front door, one expensive trip to traffic court can potentially wreck your life for years. But if you are here illegally, in many jurisdictions, the police – at the behest of political officials – won’t even bother with a citation.
The failure of rule-of-law enforcement for our immigration laws is a moral cancer eating away at the spirit of unity, common expectations, and civic equality in this country. If anyone should think shame on themselves, it’s the people who advocate for gutting the rule of law in immigration enforcement, and then pretend to care about the rule of law when it comes to pardoning Joe Arpaio.