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Today in the Community: December 1, 2011

Today in the Community we continue our discussion of Arizona v. United States.  Yesterday we received some great comments regarding the policy implications of S.B. 1070, and whether those implications might influence the Justices’ thinking about this case. (You can read those comments below the jump.)  We continue to welcome your comments on that topic. In addition, today we turn to the merits of the case. We hope you will participate.

Jack Chin – 1 Promoted Comment

SB1070 and its cousins are clearly based on the idea that justice should be done, though the Heavens fall. Recalled Arizona senator Russell Pearce, one of the parents of SB1070, was not motivated by social or economic effects; the point was the principle of the thing, a naive view that if laws are broken, then there must be a governmental response.

On the other hand, even if the policy implications are dreadful, I doubt that will be particularly important to a majority of the Supreme Court. In three-strikes cases, and drug cases, the Supreme Court has upheld policies which were at least as costly, harmful and ineffectual as SB1070. The question will be state power.

Ben Winograd – 1 Promoted Comment

SB 1070 is poor public policy. It is poorly reasoned, poorly crafted, and—if the Supreme Court lifts the pending injunction—is bound to be poorly implemented. It was conceived not by legislators in Phoenix but outside lawyers specifically hoping to provoke a legal challenge. And though the Justices may empathize with the people of Arizona, those feelings are unlikely to impact their decision to review and/or overturn the ruling below.

The fundamental problem with SB 1070 is its basic assumption that whether an immigrant is “unlawfully present” is a simple yes-or-no question. In truth, determining the answer can require years of litigation and generate different responses from different federal agencies. There is a reason people say immigration law is more complicated than any field but tax law. Even the Supreme Court makes simple mistakes when dealing with the subject. In Chamber of Commerce v. Whiting, for example, Chief Justice Roberts wrongly assumed that immigrants with final removal orders can never lawfully work in the country (see page 17 of the opinion). As one immigration lawyer quickly pointed out, however, federal regulations set forth numerous ways by which immigrants with outstanding removal orders can still obtain employment authorization.

Thrusting local law enforcement agents into this thicket is not a wise idea. Local police are no more competent to identity violators of federal immigration law than they are to spot breaches of other federal regulatory regimes, such as insider trading. As District Judge Marsha Blackburn noted (pp. 76-77) in discussing a similar provision of Alabama’s immigration law, inviting untrained local officers to make spot determinations about immigration status is likely to enmesh municipalities in litigation for Fourth Amendment violations. And from a public safety perspective, to say that police must investigate the status of persons they suspect of being deportable is to say it is acceptable for undocumented immigrants—or those with whom they work or live—to fear informing the authorities when they are victims or witnesses of crime.

Ironically, the passage of SB 1070 coincided with the most significant downturn in illegal immigration in decades. During the most recent fiscal year, apprehensions along the southern border fell to the lowest levels since the early 1970s. Meanwhile, interior enforcement of the immigration laws is more robust than at any time in the nation’s history. Since the start of the Obama Administration, the government has carried out nearly 1.2 million deportations—a pace that, if continued for two full terms, would rival the total figure for the Clinton, Reagan, and both Bush presidencies combined. As these figures suggest, claims the federal government does not enforce the immigration laws are simply not true.

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Jay Sekulow – 1 Promoted Comment

In a previous case, the Court acknowledged that states have some “power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.” To the extent Justices focus on policy at all, it will be on the interplay between the federal government and the states in this unique area where the federal government has plenary authority but the states suffer almost exclusively the effects of ineffective federal enforcement policy.

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Toni Massaro – 1 Promoted Comment

Whether SB 1070 is “good policy” depends on one’s perspective about law and policy, of course. But it is hard to see how this is anything but a tragic piece of legislation –even if one places to one side the fundamental normative issues regarding how America should treat its immigrants and undocumented persons, as a matter of fundamental justice, as well as law.

First, SB 1070 was poorly crafted. It was designed outside the state, and fits awkwardly (at best) into existing state laws. This already has led to knotty and baffling questions of what it even means. Law enforcement and their legal counsel immediately raised serious questions about this, as well as concerns about how its literal enforcement might actually hamper their efforts to secure public safety.

Second, SB 1070 is bad for the immigration law and policy. This was a politically charged, chest-thrusting, “throw it against the wall and see what sticks” measure designed to challenge, if not defy, the federal government rather than work through the massively complicated legal and policy questions that federal immigration law presents as it intersects with traditional enclaves of state and local power. It was more political posturing than political craftsmanship. This reduces our ability to address the real problems of fixing immigration law and policy, and further undermines public confidence in government’s ability to engage in effective, bipartisan policymaking.

“States’ rights” should include states’ responsibility, especially when a state is insisting on more cooperative federalism. Openly defying the federal government and daring it to respond is a poor way to start any intergovernmental conversation that will require compromise and shared governance. Of course, in immigration law and policy, the federal government has similar responsibilities, which it has failed to meet.

Third, SB 1070 has had extremely harmful expressive and community effects on people within Arizona. Legislation that is this divisive, and that is interpreted so widely as aggressively –even cruelly– hostile to a vulnerable population is harmful in and of itself. Friends and neighbors were wounded. Community internal trust was eroded. Political community was frayed.

Fourth, SB 1070 likely will be bad for the courts. There will be no good outcome here, no matter how the case is resolved by the Court. The outcome likely will be used as a political parry to a political thrust, even if the Court works hard to resolve the matter on strictly “legal” grounds. When legislatures give raw political messes like this to the courts and ask them to resolve them, nobody wins.

Fifth, SB 1070 has had a negative effect on the state’s economy, –which the state can ill afford. This hurts all Arizonans, and all who depend upon them.

Finally, SB 1070 sends a wildly distorted image of Arizona’s complex peoples to the nation. Senator Pearce was recalled, which was widely reported and linked to the SB 1070 legislation and its aftermath. And the nation saw how Arizonans come together in times of crisis, after the horrific shootings here last January. But significant reputational damage already has been done, in terms of the nation’s very skewed (almost defamatory) view of Arizona. The face of a wonderful state that is richly diverse, red and blue, native and non-native, urban and wildly rural, ideologically pluralistic , and distinctively open –in so many ways – to cultural and ethnic complexities, appears one-dimensional , insular, and hyper-partisan. SB 1070 turned Arizona into a sound bite, tailor-made for today’s sensationalist journalism to compress and exploit. And any public leader who cares about the state as a whole, as a mosaic, should have anticipated this and worked very hard to prevent it.

If some policy good does come of this, perhaps it will be as a cautionary tale, and as occasion for a “stop and think” moment for all policy makers seeking to promote the public good with minimal public harm as we all face agonizing problems that defy easy or one-party solutions.

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Recommended Citation: Kali Borkoski, Today in the Community: December 1, 2011, SCOTUSblog (Dec. 1, 2011, 10:00 AM),