POLITICS APRIL 24, 2012
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When Governor Jan Brewer signed S.B. 1070—Arizona’s notorious immigration law—in 2010, she didn’t just enact what was, at the time, the harshest immigration regime in the United States; she also inspired copycat bills in a number of other states. But with the Supreme Court set to consider the constitutionality of Arizona’s law—oral arguments for Arizona v. United States will be heard on Wednesday, and the Court’s decision is expected by the end of June—there’s a lot more at stake than the fate of S.B. 1070 and its imitators. What hangs in the balance is an unprecedentedly harsh, but increasingly popular, philosophy of combating illegal immigration.
S.B. 1070 cemented Arizona’s position at the vanguard of a hard-line immigration enforcement movement. The law mandates that police officers ask for identification papers whenever they stop someone if they have “reasonable suspicion” that the person is in the United States illegally. It also requires the police to check the immigration status of anyone arrested in Arizona, and it makes it a crime for undocumented immigrants to seek work in Arizona. These provisions have not only led to a greater role for police officers in immigration enforcement, they have criminalized certain actions where the federal government has declined to do so—most notably, in making it a misdemeanor for immigrants to lack immigration documents. (Historically, lacking legal immigration status has been categorized as a civil, not criminal, offense; deportation is a civil, not a criminal, penalty.)
These provisions gave other state legislatures a model for what is known as “attrition through enforcement”—essentially, the idea that life can be made so difficult for illegal immigrants that they will leave the U.S. voluntarily. (This is what Mitt Romney was referring to when he spoke of “self-deportation” at a January debate.) To date, five states—Utah, Alabama, South Carolina, Georgia, and Indiana—have passed laws that mimic S.B. 1070, and measures employing similar tactics have been pushed in more than two dozen others.
These laws have met judicial resistance. In April of last year, the Ninth Circuit Court of Appeals upheld an injunction against enforcing four key provisions of the Arizona law: the criminalization of illegal status; the criminalization of seeking work without authorization; the warrantless arrest of anyone believed to have committed a “removable offense” under federal immigration law; and what the law’s critics call the “papers, please” section. This last provision, perhaps the most notorious, requires law enforcement officials to ask for identification from anyone they reasonably suspect to be in the U.S. illegally. Courts have blocked similar provisions of the S.B.1070–style laws passed by South Carolina, Georgia, Utah, and Indiana. In Alabama, certain parts of a similar law were enjoined, but the “papers, please” provision was allowed to go forward.
At the Supreme Court this week, the federal government will seek to demonstrate that Arizona has unconstitutionally overstepped its authority, preempting the federal government’s jurisdiction over immigration policy. (The Supremacy Clause in Article VI of the Constitution holds that state laws cannot conflict with federal laws.) Arizona argues that S.B. 1070 does not preempt, but rather complements,federal efforts. But critics respond that many provisions of S.B. 1070, by mandating maximum enforcement, conflict with federal policy that directs enforcement resources toward “high-priority” immigrants.
At this point, it’s not clear how the Court will rule. Marshall Fitz, an immigration law expert at the Center for American Progress, says that the Court is likely to strike down the criminalization of soliciting work and being undocumented. Congress has explicitly rejected criminalizing the former, and existing law has always considered the latter to be a civil offense. “[Congress] said they would not impose sanctions on people, but on employers” when illegal immigrants seek work, says Muzaffar Chishti, who directs the office of the Migration Policy Institute at NYU Law School, referring to a 1986 debate. “It would be stunning if they found those two provisions constitutional. It would directly reverse precedent and preemption law,” Fitz says. But the other two provisions could be tougher to defeat.
Whatever the Court’s determination, it will have effects beyond Arizona. “If the Court were to bless Arizona’s law,” says Fitz, “it would effectively enable the states that have their comparable provisions on hold to go forward.” That means, at the very least, that Georgia, South Carolina, Indiana, and Utah will likely proceed with their laws. (Alabama’s law goes beyond Arizona’s in some respects, so even if the Court blesses S.B. 1070, it could still face some roadblocks.) Chishti agrees, and adds that sanction by the Court could give states that have flirted with similar laws “clear leeway.”
A ruling in favor of Arizona would have cultural and social consequences as well, say opponents: It would essentially bless racial- and ethnic-profiling, and create profound inconsistencies in policies between different states. “On an important issue like immigration, where we’re supposed to speak with one voice, you’ll have a cacophony of voices,” Chishti warns. The split between welcoming and unwelcoming states could become even starker. Besides the states whose existing laws will likely move forward, the list of additional imitators, according to an analysis by the Center for American Progress as well as my reporting, could eventually include Virginia, Missouri, Kansas, Iowa, New Hampshire, Tennessee, Kentucky, North Carolina, Florida, Oklahoma, and Mississippi.
On the other hand, of course, the Court could strike down S.B. 1070, which might cool some of the enthusiasm for similar laws in state legislatures across the country. Though, with another election this fall and anti-immigration sentiment still a potent force, it’s unlikely we’ve seen the end of heavy-handed attempts at “self-deportation.”
Nathan Pippenger is a reporter-researcher at The New Republic.
26 comments
If Jan Brewer backs down from SB 1070, I'll support reclassifying being that old and wrinkly as just a civil offence.
- chaitless
April 24, 2012 at 6:42am
And in 20 years, after global warming ravages Arizona, I will fight as hard as possible for relief for the remaining whites there. Let them roast and die of thirst. They want their own version of cracker hell, let them have it. I gotta admit, it is almost comical to watch Republicans slowly commit demographic suicide if it were not for all the minorities they will persecute before this batch of xenophobic racist crackers passes from the scene. And New Hampshire? It is far, far likelier that an illegal is from Canada up there but you can be damn sure no white will ever be stopped.
- blackton
April 24, 2012 at 9:34am
Why Arizona would need to pass such a frankly, racist bill in order to make those snow-birds and Minute Men think they're doing something about illegals and deal with all the legal complications, boycotts and negative publicity is beyond me. When all they really had to do was past up miles of billboards along the border with Jan Brewer's face on it. That sour-puss, bitter pinched-faced, 40 miles of bad road, visage is deterrent enough to keep anyone from wanting to immigrate to Arizona.
- singlspeed
April 24, 2012 at 10:45am
Jan Brewer has published a book called Scorpions for Breakfast. While it's probably not very nice to criticize a person for his or her appearance, most of us would probably not have a very pleasant expression if we started off our morning on such a diet. Illegal immigration from Mexico seems to be declining, in part because opportunity for getting work is less. Perhaps Ms. Brewer will be sneaking into Mexico seeking a job. If the Mexican authorities look at her family's history, they wonder if she would be someone they want in their society. "Brewer and her husband have had three sons, one of whom died of cancer in 2007. Another son was declared not guilty because of insanity for the rape of a Phoenix woman in 1989; he has been a psychiatric patient for 22 years in the Arizona State Hospital."
- skahn
April 24, 2012 at 3:42pm
Exactly. LOL the way things are going we're gonna be fleeing south. End of immigration problem. PS aaaccckkkkkkkkkkkkkk. This law, the whole papers thing, sounds like Germany doesn't it.
- Sophia
April 24, 2012 at 5:29pm
I think Arizona legislation is important and while it may be struck down will at least explore what is possible in immigration law. Our Federal Government claims sovereignty but does not do anything. What remedies does Arizona have to resolve this issue that is held up by political arguments, budget issues and neglect? Arizona police have to read a suspect their Miranda Rights in Spanish to make sure they are understood, but that same policeman can not ask a person who speaks only spanish if they can supply proof of citizenship? There is a double standard here. Correct me if I am wrong but isn't it against federal law for companies to hire illegal immigrants? But it's legal policy for them to apply for jobs? Isn't this Federal Law and Policy in conflict? Can't a state reasonable make a complimentary action like this illegal? Arizona is not the problem here. The Federal Government's inaction is what's really on trial. And the Government will find that they can not dictate policy without legislation.
- CRS9TNR
April 24, 2012 at 8:35pm
CRS9TNR, illegal mexican migration is at an all time low and this has as much to do with Mexican demographics as US law as their own birthrate is much lower than previous generations, but it should also be noted that deportations by Obama are higher than any previous administrations. Let me repeat, right now there is basically zero by the way of migration from Mexico. So tell me how Arizona has no choice given that immigrants can simply go to California or Texas, and from there north.
- blackton
April 24, 2012 at 10:12pm
Further, unless you've lived in the Southwest you have no idea how bigoted this stuff really is. In much of America, racism is expressed primarily against African-Americans. However, in much of the West the real hatred and contempt are reserved for Native Americans and Mexicans. You have to hear it to believe it I guess but as a native of the SW I grew up with this, and was shocked by it even as a child let alone as an adult. We're also missing a huge opportunity here: to become multilingual. Many people in Europe and elsewhere in the world speak several languages and are taught languages from early childhood. There is nothing wrong with us learning French and Spanish at a minimum; in fact a pilot program in my public school in Denver began, when I was in the 4th grade, teaching Spanish via TV and I can still remember quite a bit of it. The experience could have been so much better if we'd had a real live teacher instead of a TV teacher, this was in the days of black and white TV but at least they were thinking along progressive lines, and also celebrating the heritage of our state which was hardly Anglo-Saxon, indeed the very name of the state is Spanish and of course the original inhabitants are "Indian." They of course were virtually destroyed. Somewhere along the line my own sister, who believe me was raised better, our mother is Rolling In Her Grave, picked up this anti-Mexican thing and moved to the mountains rather than raise her kids in town. She says omg if I had raised my daughters in Denver they would be drug addicts! For heaven's sake people actually talk like this. They think being exposed to kids of Mexican descent will make them drug addicts. It's just nuts. So don't kid yourself, this isn't, deep down, about immigration. We are after all a nation of immigrants, supposedly holding out the lamp for the huddled masses, etc. No. This is deeply racist. PS: nobody seems to have noticed that the US is part of a hemisphere, namely, the Western one, not the European one. Why are we so xenophobic? Our relationships with the lands to our south in particular are shameful and instead of helping the people we boycott them, exploit the people, steal their resources and meddle in their politics. Then we wonder why there is poverty and people want to come here to work? A lot of this reflects not only bigotry but American political nuttiness about socialism too. We really need to grow up and instead of all this nostalgia for the British Empire, become part of the Western Hemisphere, which happens to be where we actually live. And we've got to lose our fear of "the other," really we are not all white anglos, most of us are not, and that's OK. America is about ideals, about ideas, not about color or even the English language, glorious though it may be. We won't cease to exist if we learn Spanish or even acknowledge the 3rd world within our own nation, the world of the First Nations who have a lot to teach us, if we'd just bother learning.
- Sophia
April 24, 2012 at 11:50pm
Basically the whites in the southwest are scared down to their socks that one day the Hispanics will get a majority and then invite Mexico to come back in and reclaim the territory. They won't, because they like being in the U.S., but Anglos are too stupid to realize that. It's funny, in a way. Or maybe not.
- ironyroad
April 25, 2012 at 12:07am
Mexican illegal immigration has dropped from 2005 to 2012 and continues to drop. Primarily that is because of rising standards of living in Mexico overall but also because of the impacts of the Great Recession. Immigration from other South American countries (illegal) has remained relatively steady. This means the % of non-Mexican illegals has gone up in proportion. Arizona faces unique issues, but it's issues are not any more unique than California or Texas, both who share a border with Mexico last I checked. I'm just wondering why lilly white states like Georgia, South Carolina, Indiana, and Utah seem to think they're under some sort of existential threat of become little Mexicos. The town of Peach Pit, Georgia (pop. 15,000) gets an authentic Mexican restaurant and suddenly Bobby Joe Crackersack says "them thar dirty, filthy wetbacks is stealin' our peach pickin' jobs right from underneath our nerses!" Bubba Jo Butternut cries out in return "YEAH! Why, I hears the local negros gots to compete for d'em jobs too! Wouldn't catch me pickin' no peaches tho. That don't pay 'nuff for a man ta' raise a family on. And besides, my back's a hurtin' and I'm on perm'nent disabilities."
- singlspeed
April 25, 2012 at 9:52am
Irony writes: "Basically the whites in the southwest are scared down to their socks that one day the Hispanics will get a majority and then invite Mexico to come back in and reclaim the territory." Except the southwest has been living WITH folks from Mexico for hundreds of years. So, no, this isn't anything new for them. PS. Irony, I saw Jimmy Fallon introduce President Obama onto his shows last night as the "Prezzy of the United Steezy" and I thought of your assertion that the Fox News correspondent tweeted that Obama invited "Hoods to the Hizzhouse" as one of the most racist examples you could find of Fox news. So, if that was one of the most racist things you've heard from Fox, and then Fallon just called PBO "The Preezy of the United Steezy" while PBO was standing there with Isaac Hays music in the background and Fallon feigning a black accent... I'm sure you'll have a good reason why this time it was OK. But this is what I love about long, drawn out discussions searchable by google. Bit by bit you pin people down and reveal them for what they are: Ideologues feigning outrage over everything that they don't like. And throwing about the terms racism, sexism however they wish to try and bolster their point. PS. Remember when I said that TV (aka The Left) butters their bread on a steady diet of jokes about blacks, gays, etc? For example, they set up a caricature of a "typical republican" (Bunker, Baldwin on 30Rock, Colbert, etc) and have him make gay jokes. Or black jokes. And of course, this is just a cheap mechanism for making the joke. What they really want to do is just make the joke. Here we see Fallon slipping into the character of a suave black guy (a la Shaft) and then use that platform to say things he'd never say as a white guy. Especially to PBO while he's standing there. The only thing missing was the blackface and wig. And the audience roared with approval. "Are you not entertained?"
- seattleeng
April 25, 2012 at 2:13pm
???????? Are you talking about the "Slow-Jammin' the News" section of the show? I certainly agree with you that Obama is about the only politician who can do something like that with style and humor. Again seattle, you seem to be in a lot of confusion as to what racist language is and how it is deployed (most often with malicious intent). But as several people here have tried to explain and failed, I see no point in reopening the topic.
- ironyroad
April 25, 2012 at 3:44pm
Your explanation was simply one of intent. If you don't like someone, you ascribe "mal intent" to what they say (such as Fox anchor's tweet). And if you do like someone, you ascribe "good intent" to what they say (such as Fallon) for doing the same or worse. Thus, the explanation is simply "Racism is what Irony says it is, no more and no less" and onward we go through the looking glass. Which is not too far from what the left believes writ large. We heard for years about how Bush was crushing freedoms. When Obama adopted and even extended the same policies. Crickets. Not a word. Fox anchor using Snoop-talk about Obama? Racist. Fallon? Hilarious! Limbaugh making fun of chinese accent? Racist. Biden making fun of Indian accent? Hilarious! Yes, I get it. Now, with that established, how can any assertion here that the right fears mexican americans on the whole be taken seriously?
- seattleeng
April 25, 2012 at 4:48pm
"how can any assertion here that the right fears mexican americans on the whole be taken seriously?" I guess when the Arizona AG says a Tuscon law that bans only "Latino Studies" specifically is legal, one tends to wonder what the purpose of such a ban serve except to exclude or marginalize a specific minority group. Is it it the fear of the existential threat of being taken over by "others" or just a specific fear of a certain ethnic minority group? Seattle, I'm not sure how your examples refute the fact that Arizona passes laws targeting specific ethnic minorities as not being racist or having racial undertones to them.
- singlspeed
April 25, 2012 at 5:18pm
"Your explanation was simply one of intent." Intent matters. Context matters. If I stand on your toe accidentally, it was a dumb thing to do and deserves an apology -- it wasn't however my intent to hurt you; if I stand on your foot deliberately, I am being an aggressive dick with malicious purpose. I doubt that any, and I mean any, intelligent human being with a normal capacity for judgement could watch the Jimmy Fallon clip and conclude that he was directing a racist-inflected barb at the president. Why don't you give it a rest seattle? You dig yourself in deeper with every contribution.
- ironyroad
April 25, 2012 at 6:09pm
Blackie - I realize Mexican Immigration is down and right now it's a not the problem it was. But Mexico has some serious problems that aren't getting solved right now. Friends at work have family who have moved out of Mexico because of the lawlessness across the broad middle of Mexico. They were wealthy enough to come legally, but if they are leaving it's getting bad. I was a little surprised that Audi picked Mexico for their new assembly plant, near the VW Puebla plant that has done well over the years. And look for a new Honda Plant soon, and Nissan is expanding in Agua Calientes too. Mexico's Free Trade Agreements with NAFTA, Mercosur and the European Union are starting to pay off. Combined with their support of manufacturing they have a few advantages to these better jobs. With the Peso Stable at 10-15/$ the inflation that damaged the economy is over with and investment in Mexico is more predictable. But I still believe that the immigration issue hurts the US & Mexico with the general lawlessness with which is happens. It emboldens gangs and encourages corruption. I support Arizona with doing something to try and change the situation.
- CRS9TNR
April 25, 2012 at 9:15pm
Sophia, very well articulated post at 11:50 EST on 4/24. CRS says, “Arizona police have to read a suspect their Miranda Rights in Spanish to make sure they are understood, but that same policeman can not ask a person who speaks only spanish if they can supply proof of citizenship? There is a double standard here.” So, you believe that the price for being afforded one constitutional right should be the relinquishment of another constitutional right? “Correct me if I am wrong but isn't it against federal law for companies to hire illegal immigrants? But it's legal policy for them to apply for jobs? Isn't this Federal Law and Policy in conflict? Can't a state reasonable make a complimentary action like this illegal?” It is not “legal” for undocumented workers to apply for jobs. They can be deported for seeking jobs without the required papers. But as has been pointed out, deportation is considered a civil sanction rather than a criminal sanction. The Arizona law would make it a state crime to apply for a job without papers, potentially punishable by imprisonment. Though it also is illegal for companies to hire undocumented workers, companies are seldom gone after. Rather, it is the workers who are villainized, people who endure great hardship just to get into the US, and then often must work under horrible conditions, because they are trying to feed their families. Meanwhile, factories and agribusinesses hire undocumented workers with impunity. Double standard indeed. Dhurtado
- NR143296
April 25, 2012 at 11:00pm
It's crazy that reams of seasonal agricultural vacancies go unfilled because Americans are too wimpish and cosseted to do them any more, and yet we have a whole paranoid campaign rolling down the road about immigrants who are taking "our" jobs. Yeah, if farm work was more regulated and unionized, your entree down at Chili's or even at your local independently-owned restaurant would be $18.99 instead of $13.99, or might have smaller portions on the plate. Apocalypse! End of the world!
- ironyroad
April 26, 2012 at 12:36am
irony writes: "I doubt that any, and I mean any, intelligent human being with a normal capacity for judgement could watch the Jimmy Fallon clip and conclude that he was directing a racist-inflected barb at the president." And yet you ascribe malice to the fox news anchor's comment? How do you know? You do not. And if you do not, isn't it incredibly irresponsible to call it racist? When I told you my brother and I might sometimes greet what "Whattup gansta?" you told me all this snoop and ganster talk was very hurtful. But now that the president is participating in it, you want to drop the topic. This kind of talk is part of our pop culture. It's playful fun. Nobody means anything by it. And the fox anchor was doing what millions, including Fallon and the president himself do. Now, will you retract your calling the fox anchor's tweet racist?
- seattleeng
April 26, 2012 at 12:14pm
"And yet you ascribe malice to the fox news anchor's comment? How do you know?" Er . . . it's Fox News?
- ironyroad
April 26, 2012 at 12:21pm
Incidentally, what I actually said on that other thread was this: "In case you don't realize it, there is an entire history of black parents trying to get their kids NOT to fall in to "gangsta culture" speech modes as if they were some kind of racial badge of honor. We are talking about something a universe away from a couple of white kids quoting movie one-liners back and forth at each other with no fear that anyone will read any negative implication into them." A remark that I think was not an accusation of racism, but rather pointing out that the mere fact that you and your brother have fun with this stuff is not per se evidence that it can't be problematic in other contexts. I haven't been accusing you of racism, I've been accusing you of seeing it when it's not there and not seeing it when it's there. The Jimmy Fallon Slow-Jammin' was 1) not malicious in intent 2) not aimed at a target 3) not playing into negative white stereotypes for electoral purposes (you can certainly say it was broadly for political purposes, but it wasn't playing on fear and hatred) 4) in a context in which, I assume, Obama knew what he was about and planned in advance. In general it seems closest to Clinton on Arsenio Hall twenty years ago. If you have any evidence that would challenge or refute 1 thru 4 above, let's hear 'em.
- ironyroad
April 26, 2012 at 2:12pm
Irony writes: "but rather pointing out that the mere fact that you and your brother have fun with this stuff is not per se evidence that it can't be problematic in other contexts." My brother and I do this over the phone. There's nobody else around. Fallon called Obama the "prizzie of the united hizzie". That indeed had a target (#2). That indeed plays into a negative stereotype (#3). And seeing Fallon do that, TO THE PRESIDENT, NO LESS, means there were a lot of comments around the water cooler the next day in which a clueless white guy thought it'd be funny to say the same to the black guy in his office. At a minimum, it sends a wrong message. I'm sure you can agree to that. But I'm curious why you think my phone call with my brother is problematic, but you don't think this bit on national TV was not??? Finally, throwing around the word "racist" when you have no idea what is in a person's heart is absolutely awful. It's hurtful. It's damaging. It causes needless friction. And it cheapens the word. To much of the left, "racist" is synonymous with "anything I don't like". You brand everything racist. And then when we really encounter truly racist speech, such as Sharpton's diatribe against Asians, there isn't really a word for that because "racist" has been cheapened to mean everything and nothing by the likes of you.
- seattleeng
April 26, 2012 at 4:05pm
I didn't say your phone gig with your brother was problematic, I said it wasn't problematic. It might help if you'd read stuff before responding. I use "racist" in limited contexts where I think it's justified (mostly as an adjective). So, it appears, do you. I think your comments on Fallon are a bit loopy. There was NO target (who was the target?) Fallon wasn't out to evoke clichés about black criminality and smear the president with them. You can certainly not like it or call it undignified, or whatever. I guess you could also argue that Slow-Jammin' the News itself is a kind of stereotype (black music is sensual, or whatever), but it's meant to be a satirical pairing of make-out music and banal news items, n'est-ce pas? Could someone take over from here? I'm getting kinda weary of going around the same track with seattle time after time.
- ironyroad
April 26, 2012 at 4:35pm
But if a person isn't racist, and you call them racist, is that wrong?
- seattleeng
April 26, 2012 at 6:21pm
Yes. But if a person isn't racist himself or herself, but they knowingly deploy racist language and race-inflected hate-mongering for a political purpose, what do you call that? I'm open to suggestions.
- ironyroad
April 26, 2012 at 10:05pm
Maybe . . . "racism"? Cynical racism rather than pathological racism, perhaps? Whaddaya think?
- ironyroad
April 26, 2012 at 10:26pm