Arizona Anologies

While I found Megan’s analogy linking Arizona’s immigration law to progressive taxation to be without merit, I must admit that Roger Clegg’s analogy linking it to affirmative action gave me somewhat more pause.  But the analogy ultimately fails.

Let’s assume, arguendo, that the law results in absolute racial profiling in that only Hispanics will be questioned about their immigration status.  I suppose a proper, though limited, analogy to affirmative action might go something like this:  in considering applicants to a “highly selective” institution of higher learning, an admissions committee reasons that since the percentage of minorities with an IQ in the desired range (130+) is only 1/16th the percentage of whites, it will not bother to consider applications from minorities.  The committee won’t automatically admit whites, who must still “show their papers” (i.e. test scores and transcripts) in order to gain admission.  But non-whites won’t be considered.

Obviously, this analogy inverts the undesired thing (having immigration status challenged) into a desired thing (being considered for university admission); thus, all students with good records would be eager to “show their papers”.  But my analogy also inverts reality:  affirmative action is not a program to search for talented students where they are most likely to be found; it is rather a program to admit students known to have inferior qualifications.

If Arizona’s program were anything like affirmative action in the real world, it would not only question non-Hispanic residents of Arizona in proportion to their share of the general population, but arrest, prosecute, and convict them in that percentage as well.

So, Roger, when Arizona starts doing that, get back to me.  Until then, I see no reason to abandon Arizona’s enforcement of immigration law because of specious analogies to an odious policy that has no chance of being similarly abandoned anyway.

On the other hand, Andrew McCarthy has an analogy to the Patriot Act that is quite worrying.

I continue to believe — for the reasons argued here — that the Arizona law actually gives more protection to suspects than federal law does. If I am right about that, the law could well be counter-productive because (a) it gives police less lee-way than they previously had, (b) as a practical matter, it may be ineffective or irrelevant in many if not most instances, and (c) politically, it has put people in Arizona on the defensive when they are actually the aggrieved party.

We saw the same thing with the Patriot Act. Other than knocking down the infamous "wall" (which may have been unnecessary given a later FISA court decision), most of the Patriot Act simply gave national security investigators powers that criminal investigators had been exercising for years — and, in fact, put more strictures on those powers. For example, for all the hysteria over the so-called "library records" provision, the fact is that the Patriot Act made a national security agent go to a judge to get such records whereas a prosecutor who wanted library records for an ordinary criminal case simply wrote a grand-jury subpoena and asked an agent to serve it — no need to make any showing or representations to a judge.

But what happened? The Left and the civil libertarians used the Patriot Act as a vehicle to re-litigate all sorts of Fouth Amendment privacy issues that had been settled in the government's favor for 30 or 40 years. There is a good argument that the Patriot Act, for all its useful provisions and good intentions, has left government more hamstrung than it might have been had Patriot not been passed.

I don’t have the background to know if this analogy is valid or not.  Thoughts?