Breaking News

Response to Arizona v. United States symposium contributors

The contributions to this on-line symposium on S.B. 1070 and Arizona v. United States have left me with the firm sense that there are policy, civil rights, international human rights, federalism, federal supremacy, and other important overarching issues implicated by the case.  Nonetheless, we are likely to see the Supreme Court, if it even decides to review the Ninth Circuit decision, approach the case in a lawyer-like fashion and apply the relevant federal preemption precedent to the specific provisions of the Arizona immigration law in ruling on S.B. 1070’s constitutionality.  This prototypically “legal” approach may ultimately be somewhat dissatisfying but it is exactly what we would expect a court of law to do.  Such an approach by this Court seems inevitable, especially given the complexities, and contested nature, of modern U.S. immigration law.

Importantly, after reading the various takes on United States v. Arizona, I am more convinced than ever that it is difficult to predict how the Supreme Court will (and if it will) address the case.

Although not feeling a need to elaborate on my legal analysis or predictions, I do feel compelled to register disagreement with the rhetorical approach of one of the contributions.  Professor Carol Swain (“Why the Court should uphold S.B. 1070”) states that “[c]riticisms of S.B. 1070 seem to be politically motivated and orchestrated by groups and foreign entities that benefit directly or indirectly from lax immigration enforcement.”  This blunt accusation unfortunately denigrates the good faith legal concerns with Arizona’s foray into immigration regulation.  Indeed, several contributions to the symposium, at least in my estimation, raise valid legal concerns with S.B. 1070 and do not appear to be “orchestrated” by outside agitators.

Professor Swain’s summary defense of S.B. 1070 blames “excessive crime, homelessness, and high employment” on “the uncontrolled influx of illegal aliens across the Southwestern border,” with Arizona’s “capital city of Phoenix dubbed as the `kidnapping capital of America.’” Given the hyperbole, I almost expected a reference to Governor Jan Brewer’s fabricated claim of headless bodies in the Arizona desert as one of the reasons the state needed S.B. 1070.

These strong, unqualified, and charged claims hide the fact that these are deeply contested propositions with which many, probably most, respected immigration scholars would disagree.  A quick perusal of the evidence is to the contrary.  For example, an in-depth USA Today investigative report last week concludes that, despite the hyperbolic claims by politicians of a border “crime wave,” crime rates in border cities have been decreasing for several years.

And how can one colorably contend that there has been an “uncontrolled influx of illegal aliens” when the undocumented population has decreased by roughly a million people over the last few years?

Despite the fact that the Obama administration has deported more noncitizens than any presidency in U.S. history – close to 400,000 last year, Professor Swain states emphatically that the U.S. immigration laws “are not being enforced by the federal government,” and that the resulting “crisis . . .  threatens the sovereignty of the nation.”  That is because, in her words, “President Obama, the Department of Justice, and the Department of Homeland Security have sided with interest groups who favor open borders and amnesty.”

This is quite an indictment indeed.  True, some advocates and policymakers – including Presidents Obama and George W. Bush, have called for some kind of “amnesty,” or path to earned legalization, for undocumented immigrants.  I am not aware, however, of any influential advocacy groups seriously calling for anything approximating “open borders.”   This phrase is a red herring regularly thrown into the discussion by ardent advocates for increased immigration enforcement, such as Lou Dobbs and Michelle Malkin, or the Federation for American Immigration Reform and the Center for Immigration Studies, seeking to end, not begin, a dialogue on the real issues.  In any event, the characterization that this administration somehow has been “captured” by “open borders” advocates fails to account for the fact that immigrant rights advocates have harshly criticized the Obama administration for its aggressive immigration enforcement efforts.

In the immigration debate, inflammatory rhetoric all too often obscures the truth  — that the claims about the alleged litany of horribles brought by the “invasion” of immigrants simply are not substantiated by the facts.  Unfortunately, this kind of approach is characteristic of far too much of the national debate over immigration and demonstrates the difficulties in having an informed national dialogue on this all-important topic – or apparently even a discussion among lawyers and professors about how the Supreme Court might rule on the constitutionality of Arizona’s S.B. 1070.

Ultimately, Professor Swain’s contribution seems to prove the point of Rogers Smith that Arizona and its ideological supporters want an immigration policy other than that passed by the U.S. Congress and enforced by the Executive Branch.  This is, of course, precisely what the U.S. government, as the plaintiff in United States v. Arizona, is contending.  And it is one of the most powerful arguments for finding that federal immigration law preempts S.B. 1070.

In evaluating S.B. 1070, it seems to me that we should strive to consider and reasonably respond to, rather than denigrate and dismiss, the concerns of its critics as well as the supporters.  Many Latinos – including U.S. citizens — fear that the spate of state and local immigration regulation will result in discrimination against them.  If nothing else, the era of Jim Crow, which only ended with federal intervention in parts of the South, amply demonstrates that – to put it politely — state and local governments are not always sensitive to the civil rights of racial minorities.

I do share the fears of some observers that the implementation of Section 2(B) of S.B. 1070 might exacerbate the racial profiling endemic to law enforcement in the United States.  Consequently, I wholeheartedly agree with Hope Lewis that the concerns of Latinos and many others that S.B. 1070 will increase the racial profiling of Latinos – a problem in all of immigration enforcement, should not be easily dismissed.  As I mentioned in my initial contribution to this symposium, the Supreme Court is not likely to directly address this or the other civil rights implications of S.B. 1070.

At the same time, voters across the country are understandably frustrated with the current enforcement of the immigration laws, frustrations that are amplified by the economic downturn and tightening state and local budgets.  Just as we should not ignore the concerns of those who fear racial profiling, we should not ignore the concerns of those who fear the perceived problems caused by immigration, immigrants, and the failure to enforce the rule of law.  For this reason, most supporters of comprehensive immigration reform advocate additional enforcement measures as a central plank for reform.

My sense, consistent with the views expressed by some of the other contributors, is that the U.S. Congress should do something to approach the issues of all concerned in a responsible, national, and – yes, I will use the word – comprehensive fashion.  Immigration reform, by most accounts, is necessary.  But an enforcement-only approach dubbed “attrition by enforcement” passed by one state  – or ten – will not solve the immigration problems that confront the nation.  Ironically enough, one possible positive impact of laws like S.B. 1070 and the copycats in Alabama, Georgia, and South Carolina, is that they might move Congress to act.

To achieve true immigration reform, what the nation needs is an open and fair discussion, based on the facts, of the issues surrounding U.S. immigration law and its enforcement.  It seems to me that academics, policy-makers, and commentators should strive to promote and facilitate such a discussion of the issues, not foment divisions among us through mean-spirited sloganeering.  Careful analysis, learning and adhering to the facts, and listening to – not denouncing – people’s concerns are what are necessary.

Recommended Citation: Kevin Johnson, Response to Arizona v. United States symposium contributors, SCOTUSblog (Jul. 19, 2011, 10:53 AM),