Andrew McCarthy is a smart guy. Really smart. Attorney General or Supreme Court Justice smart, unlike the alleged "Smart Guy" Erwin Chemerinsky, communist friend of Hugh Hewitt. However McCarthy gets it a little wrong on his evaluation of the likely effectiveness, rather than constitutionality, of the Arizona anti-illegal immigration law. To do him justice he is unduely affected by a former DHS official Bill West. West's problem is immediate. He states ..."CBP (Customs & Border Patrol)(sic)" Well, Bill, it is Customs and Border Protection, not Customs and Border Patrol. The U.S. Border Patrol is part of CBP, but not part of the agency name. You would think a former DHS or even legacy INS official would have gotten that memo.
West goes on to say that given the lack of timely responsiveness of local USBP Stations and the Law Enforcement Assistance Center run by Immigration and Customs Enforcement, many illegals will escape because normal traffic stops are of very short duration, and many illegals use falsified documents, and hence are not in the DHS databases.
There are a few problems with that. The first is that traffic stops can be as long as the officer wants them to be. Once a law enforcement officer is engaged in a traffic stop, that stop can be as long as needed to complete any investigation. In Terry v. Ohio the Supreme Court said investigative stops can be as long as reasonably needed to finish the investigation. Delays from ICE and the USBP in searching records are acceptable according to Terry.
Next, you would think that anyone with real experience in immigration law enforcement would know that most illegals are blatantly so. No identification or only Mexican identification; or obviously counterfeit documents, whether those documents be green cards or state driver licenses or ID cards; and they usually readily admit they are illegal when questioned. I think West was forever a DHS or leagcy INS manager rather than someone who has been in the field much.
In any event, driving without a license, no registration, falsified documents, etc. all are arrestable offenses in most states. That person goes to jail, even for minor offenses, where ICE jail programs come into the fore, Secure Communities and 287(g) ensure that illegal aliens once arrested, are placed on ICE detainers and not released but taken into ICE custody. While McCarthy observes that major offenses make the law unnecessary, minor offenses also bring people to prison. And he seems to have forgotten that many agencies like Maricopa County Sheriffs Office agressively arrest illegal aliens for state offenses, such as self-smuggling, and also aggressively use minor offenses to take illegals into custody, and either turn them over to ICE or the USBP, or enter them into the deportation system when booked at the Maricopa County jail which uses 287(g) to assist in the deportation of illegals in conjuction with ICE Deportation Officers.
The only problem with effectiveness will be the Obama Regime and its orders to ICE to not arrest too many illegal aliens. This is well documented. I can see the new Arizona law being thwarted by a lack of cooperation from DHS and ICE, but that will also put the Obama Regime on the spot when some illegal that was reported to ICE by an Arizona law enforcement agency ends up killing a cop, raping a woman, molesting a child, or other such crime. The law may also be thwarted by lazy Mexican cops like Martin Escobar, but Escobar and his ilk must to be careful as they makes themselves liable for their failures to uphold their oath to the Constitution of the United States and to the Constitution of the State of Arizona and to execute the laws of the State of Arizona.