Arizona: Sure It’s Hate. But it’s a Dry Hate. (Thoughts on The Supreme Court’s SB1070 Decision)

26 Jun

For the record, I tweeted that joke well before Jon Stewart used it on the Daily Show.

In 2010, I took a leave from Local 26 to spend five months in Washington DC leading SEIU’s national immigration campaign.  Our goal was to move our immigration work beyond a policy operation and into a more aggressive campaign. No sooner had I arrived in DC immigration news, which had been on a backburner of public policy debates, came back to the forefront thanks to Jan Brewer’s Arizona.

Having spent a lot of time thinking about, campaigning against, mocking, and studying Arizona’s immigration law, I can say today’s ruling was generally positive — with one important exception (see below).

Jan Brewer’s declaration of “victory” notwithstanding, the High Court struck three of the four provisions it considered and reaffirmed the federal preemption of state immigration laws.  The Supreme Court slapped down the notion that we could have a 50-state patchwork of immigration laws.  Its decision also reinforced in important ways the discretion the federal government has in enforcing immigration violations — which is to say, the court implicitly and preemptively shot down any notion, for example, that President Obama exceeded the authority of the federal government when he recently announced that the federal government would halt the deportation of many young immigrants.

SEIU’s national immigration campaign spoofed Arizona’s law in 2010.

The Good: “As a general rule, it is not a crime for a removable alien to remain present in the United States.”

How’s that for a line if you’re looking for something, pro-immigrant and positive in the Court ruling? (p.15).

A lot has already been written about how the decision“was largely (but not entirely) a victory for the federal government.”   (For a handy summary of the decision, see the ACLU’s infographic here). I’d like to focus on one particular aspect of the decision: its implicit reinforcement of  the Obama administration’s recent changes in immigration enforcement priorities.

The decision goes on at length reaffirming not just the federal preemption of immigration laws but also the discretion the executive branch has in enforcing those laws:

“Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set be federal law.  … Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials.” (p.4)

And then, in a line that could have written for President Obama’s June 15 policy announcement, the majority opinion states:

“Discretion in the enforcement of immigration law embraces immediate human concerns.  Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime.” (p.4)

Essentially, the Court states exactly what the Administration argued on June 15th that had anti-immigrant politicians heads exploding and had Mitt Romney’s tongue tied into knots. The Administration argued that it had the authority to prioritize enforcement and that the right thing to do was to de-prioritize and halt the deportation of hundreds of thousands of young people brought to the US by their parents and family and have led good lives in the only country they know as home.

In his dissent, Scalia noted precisely the implication of this reasoning when it came to the recent Obama announcement. And he had a conniption fit.

Lo Feo in Today’s Decision: ‘Show me Your Papers’ Provision Upheld, for now

Brewer and the author of SB1070 Kris Kobach declared today’s ruling a victory because it upheld the provision that allowed police to request immigration documents if they have reason to suspect the person is in the country illegally.

Not so fast on corking that champagne, Kris and Jan.

First, what the Court essentially said was that we had to wait and see if the law as applied in a manner that violated federal law (eg, that it enabled racial profiling) before it could be blocked. “It was improper to enjoin 2(B) before the state courts had an opportunity to construe it and without some showing that 2(B)’s enforcement in fact conflicts with federal immigration law and its objectives.”

In addition, the decision states: “This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”

The Court ruled that the Arizona legislature had prettied  up the SB1070 law enough that we could not yet prove that it would lead to racial profiling. And let us not forget that racial profiling was precisely the intention of the bill as originally written.

We should remember that it was only as a result of a public outcry over SB1070 as an encouragement of racial profiling that Governor Brewer signed a subsequent law, House File 2162, that modified the bill she originally signed. It was only with this new bill that 1070 was re-written to explicitly state that racial profiling cannot be the proof for reasonable suspicion of undocumented status. The revision also changed the circumstances under which someone could be required to give proof of documentation.  While the original SB1070 as passed and signed by Brewer said this occur any time there was “contact” with a police officer, under the new revisions they could only ask papers of those they “stop, detain or arrest.”

Advocates argued that these revisions were still not enough to prevent racial profiling. The High Court said, “well, maybe, but you have to let them do it first.” Not exactly comforting, but –In a word–the fight is not over.

Today’s ruling created other stumbling blocks for implementing the law as Arizona legislators had intended.

As the Boston Herald reports:

“There was a catch, however. The court decided that officers cannot detain anyone on an immigration violation. That is, unless federal immigration officials say so.

“Hours after the ruling, the Department of Homeland Security canceled agreements with seven Arizona police departments that deputized officers to arrest people on immigration violations while on street patrol.

“Federal immigration officers will help, but only if doing so conforms to the department’s priorities, including catching repeat violators and identifying and removing those who threaten public safety and national security, the department said.”

In the words of one analyst: “Five Justices cut out three lobes on S.B. 1070, and leave one on life support.”

From a protest outside the White House when Jan Brewer met with President Obama in 2010.

Immigration Politics and the GOP

You can’t blame Jan Brewer for trying to claim total victory, even if it does get her mocked in a press conference.

And we must admit that, so far, SB1070 has not hurt her electoral career. So far. But remember back when Pete Wilson championed Prop 187? Everyone said that was good politics for him then – and it was for a while. It also made the state unwinnable for Republicans running for president in the years since. Demographic trends in Arizona tell us the very same could be true there very soon.

The Romney campaign – knowing the political realities of demographic trends and the simultaneous problem they have with their anti-immigrant political base, had a tough time coming up with a response to today’s ruling. For some fun, watch“Romney Spokesman Dodges 20 Questions on Romney’s Immigration Position.”

It’s a by-now familiar tune. So familiar, even Republicans paid to make excuses for their candidate are growing tired. Latina Republican talking head Ana Navarro tweeted,”I confess, as a Republican Hispanic, trying to put positive spin on Romney immigration (non)statements, well, let’s just say it ain’t easy.”

Ay, mija.

In a written statement, Mr. Romney said “I believe that each state has the duty – and the right – to secure our borders and preserve the rule of law, particularly when the federal government has failed to meet its responsibilities.”

So, reacting to the Supreme Court decision, Mr. Romney said he believes states have the right to do exactly what the court reaffirmed today they cannot do – preempt federal law.

As a friend commented in an email, “No time for constitutional niceties when you are in hot pursuit of a whites-only electoral coalition, I guess.”

Indeed.

One Response to “Arizona: Sure It’s Hate. But it’s a Dry Hate. (Thoughts on The Supreme Court’s SB1070 Decision)”

  1. nancymarshall June 26, 2012 at 4:40 pm #

    Very solid thoughtful analysis of the climate, the law, the Court decision. And thoughts about our future. Nice job! For an account of how SB 1070 and the officials abusing power in Maricopa County, read my novel, “A Dry Hate”.

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