Wednesday, October 20, 2010
Arizona Immigration Law (I)
Stare decisis is a school of thought that encourages judges to interpret and apply the laws based on precedents established by other court rulings. Based on the common law, this process ensures internal consistency and predictable application of the entire body of law. However, in the case of Arizona SB-1070, legal scholars wonder what the precedent for San Francisco’s Ninth Circuit Court of Appeals will be on November 1, 2010 when it hears United States v Arizona. After all, Arizona is pioneering this immigration legislation initiative, an area seen exclusively, through the eyes of the Supreme Court, as a federal domain except in certain conditions.
Arizona SB-1070 makes it a state misdemeanor offense for an alien to be in Arizona without carrying required federal documents, bars state or local officials from restricting enforcement of federal immigration laws, and cracks down on people who shelter, hire or transport illegal aliens. Failure to comply with the new law would result in a $500 minimum fine as a first offense, and a fine up to $1,000 dollars and 6 months in jail for second time offenders. This controversial immigration law provoked a heated debate nationwide even before Jan Brewer, Governor of Arizona, signed the bill into law on April 23, 2010. While critics and proponents alike agreed that it is the broadest and strictest immigration measure in generations, their opinions of the legislation have drawn sharp contrasts. Supporters argued the law forbids the use of race as the sole basis for investigating immigration status. On the other hand, critics decried the legislation encouraged racial profiling, an open invitation for harassment and discrimination against Hispanics regardless of their citizenship status.
Since immigration debates in the U.S. usually reflect the social, economic and political climate of particular periods, Arizona’s bold attempt on reform necessitates a historical frame to contextualize it. In addition, arguments on both sides of the debate also provide some context as it pertains to the law’s content and its affects on Arizonians. Finally, Arizona SB-1070’s deliberate intrusion into exclusive federal domains puts the system of federalism to task, thus thrusting Arizona in a direct conflict with the federal government.
“Yes,” declared Senator John McCain –Arizona republican and former presidential candidate— “we need to control our borders. No one argues with that... But we don’t need ballot initiatives that make people think we want them to abandon their hopes because some of us don’t believe the American Dream is big enough to share anymore.” Yet, the history of immigration reform in the U.S. sometimes paints a very different picture than the comprehensive one the senator described. The Indian Removal Act of 1830, the Chinese Exclusion Act of 1882 and the 1965 Immigration Act were race-based. The Immigration Reform and Control Act of 1986 and 1996, granted amnesty to thousands of immigrants while attempting to double the U.S. Border Patrol to 10,000 in five years at the most heavily trafficked areas of the U.S.-Mexico border. More recently, the passage of the USA PATRIOT Act, giving the federal government broad powers to indefinitely detain suspected terrorists has highlighted the discourse of overreaching governance, ethnicity, race and social stratification.
According to the U.S. Department of Homeland Security, Arizona housed about 460,000 undocumented immigrants and until the passage of SB-1070, immigration offenses were violations of federal law, something most local law-enforcement agencies could not enforce. The legislative approval came after months of impassioned debate, fueled – to a large degree-- by an outrage over the murder of rancher Robert Krentz shot along well-known smuggling routes near the border. Among the Border States, Arizona has the largest number of illegal aliens crossing from Mexico and holds the most arrests by US Border Control. The measure passed the Arizona House by a 35-21 vote with exclusive Republican support. It then passed the Senate with a vote of 17-11 supported by all Republicans except Sen. Carolyn Allen. Both House and Senate Democrats opposed the bill. As a result, many legal challenges disputing the constitutionality of the law immediately followed.
Although public opinion generally differs vastly on immigration issues, the Arizona measure is popular in that state and elsewhere. According to the latest polls, 52 percent of Arizonians supported the legislation and while some residents did not support it whole-heartedly, they expressed the need for immigration reform. Supporters of the legislation have attempted to draw a clear distinction between Arizona’s stance on illegal immigration and immigration in general. They stress that the issues surrounding immigration in Border States were complex and did not reflect the black and white, clear-cut options other states had. While some call the Southern part of Arizona the “free-for-all” half, residents grow increasingly wary of the prevalence of violent crimes spilling over from Mexico and its drug lords and the flood of illegal aliens invading their state. Sen. Ron Gould, a Republican from Lake Havasu City declared, "The U.S. Constitution says the federal government shall protect states from foreign invasion. The federal government has not done that. People get attacked continually; hence, Arizona needs to act."