While I agree with the Justice Department’s decision to challenge the Arizona immigration law and the New York Times take on that decision, I am not sure about this piece of it:

The court has already taken a related Arizona case for its next term. It challenges a 2007 law penalizing employers who knowingly hire illegal immigrants. The administration has urged the court to strike down that law for many of the same reasons it cited on Tuesday, and we hope the court uses that case to undermine the notion that states can set their own immigration policy.

The reasons the administration laid out arguing for the unconstitutionality of the Arizona immigration law are that Article I, Section 8 of the Constitution gives Congress the exclusive power to set immigration and naturalization policy, and:

…the Arizona law will divert resources from the government’s pursuit of dangerous aliens, including terrorists, spies and violent criminals. It will harass authorized immigrants, visitors and citizens who might not be carrying their papers when stopped by the police. It will ignore the country’s cherished protections of asylum and will interfere with national foreign policy interests. (Already several Mexican governors are refusing to meet with their American counterparts in Arizona, a sign of the diplomatic disarray produced by the law.)

I think the government is on rock-solid ground in arguing that the states cannot set immigration policy. But I do not see why laws governing the employment of illegal immigrants should be considered part of our immigration policy. I consider immigration policy to involve criteria for who is eligible to immigrate and to become a citizen, and all the procedures for monitoring that process, plus the enforcement of those laws at our points of entry. I do not think employment regulations are part of immigration policy as spelled out in Article I, Section 8.

All Section 8 says is that Congress shall have the power “To establish a uniform rule of naturalization.” It doesn’t say that Congress shall have the power to tell states what their employment regulations shall be. There may be good reasons to wish that the federal government had the sole power to restrict the employment of undocumented workers, but I do not think they do. What am I missing?

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