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Donald Kerwin

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Crossing the Line: From Enforcing the Law to Targeting People

Posted: 11/03/11 01:03 PM ET

The U.S. Department of Justice's challenge to Arizona's SB 1070 and Alabama's HB 56 turns primarily on the federal government's well-established authority to regulate immigration. The Arizona and Alabama laws largely interfere with the federal scheme and, thus, violate the supremacy clause of the US Constitution. Yet to many, the federalism debate elevates form over substance. After all, there is broad consensus that the federal government has failed to create a tenable immigration system. Proponents of comprehensive reform fault Congress for not overhauling the antiquated system of legal immigration or providing a path to citizenship for unauthorized immigrants. Enforcement-first proponents argue that insufficient federal enforcement has compelled state action.

The real question is how the federal government, perhaps with support from states and localities, should enforce the law. The "deportation by attrition" laws exemplified by Arizona and Alabama provide a cautionary tale. They deny basic rights to force the unauthorized and other "removable" persons to self-deport.

This model has been repeatedly and rightly rejected by courts throughout U.S. history. To be sure, federal courts have held that the political branches of the federal government possess what scholars characterize as "plenary power" over immigration matters. Under this controversial doctrine, the federal government can exercise its immigration authority virtually unfettered, even in ways that would otherwise violate the U.S. Constitution. But the story is more complex: courts have also held that in matters that do not directly implicate immigration control, basic constitutional rights apply to all residents, not just to U.S. citizens. Thus, the Supreme Court has invalidated state and local laws that would have: made it unlawful to run a laundry business in a building not constructed of brick or stone (1886); denied commercial fishing licenses and competitive civil service jobs to non-citizens (1948 and 1973); denied public benefits to lawful permanent residents who had lived in the United States for less than 15 years (1971); and prevented unauthorized children from receiving public, primary and secondary schooling (1982).

In addition, courts have held that even some immigration enforcement programs must be carried out in ways that do not violate constitutional rights. Most recently, for example, the Supreme Court interpreted a federal statute to limit the duration of detention in order to avoid finding it unconstitutional (2001 and 2005). Removal, detention and border enforcement represent legitimate enforcement strategies. Indefinite detention, electrified border fences and the denial of due process to persons in removal proceedings do not.

In recent years, however, federal laws have eroded the line between legitimate immigration control measures and laws that target immigrants. While the nexus between work and illegal migration cannot be disputed, the Immigration Reform and Control Act of 1986 (IRCA) nonetheless set the stage for subsequent deportation-by-attrition strategies by attempting to deny unauthorized immigrants the ability to work through its employer verification requirements. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) created the "287(g)" program, which provides a framework for states and localities to enforce federal immigration law. Because most immigrants will not cooperate with the police if it might result in deportation, this program potentially threatens access to police protection. IIRIRA also provided for expedited and administrative removals in broad categories of cases. As a result, most persons facing removal -- despite the immense consequences -- never appear before an immigration judge. Furthermore, the Act stipulated that states could not grant in-state tuition to in-state unauthorized residents "unless" they also made this benefit available to U.S. citizens and nationals, irrespective of their state of residence. In the REAL ID Act of 2005, Congress attempted to pressure states to deny drivers' licenses to unauthorized immigrants.

In short, well before the onslaught of state and local immigration laws, the federal government had adopted enforcement strategies that broadly affected unauthorized immigrants' safety, educational and work prospects, ability to drive and protection from wrongful removal.

The Arizona and Alabama laws have taken the idea of "deportation by attrition" to new and troubling lengths. Alabama's HB 56 built on SB 1070 to criminalize: the failure to carry federal registration documents; work by an unauthorized immigrant (though this is not a federal crime); the transport and harboring of unauthorized immigrants; entering a rental agreement with an unauthorized immigrant; encouraging or inducing unauthorized immigrants to reside in the state; and business transactions between unauthorized immigrants and the state or its political subdivisions, including payment of water, gas and electricity bills. The Alabama law also includes Arizona-type law enforcement procedures that would require state and local police to screen and verify the status of those they lawfully stop, detain or arrest. In addition, law enforcement officials would be required to determine the citizenship of persons arrested for driving without a license, to verify their status, and to hold unauthorized persons until they can be prosecuted or turned over to federal immigration officials. HB 56 also:

  • prohibits employers from deducting wages or compensation paid to unauthorized immigrants as a business expense, with violations punishable at 10 times the amount of the claimed expense deduction;
  • prevents the enforcement of contracts between unauthorized immigrants and others; and
  • bars courts from considering evidence of lawful immigration status by persons who are alleged by immigration officials to be unauthorized.

The law would require public schools to determine whether an enrolling student was born outside the United States or had an unauthorized parent; to identify and report on the unauthorized children in their schools; and to analyze the financial and other costs of educating them. It would also prevent unauthorized immigrants from enrolling in or attending any public post-secondary educational institution.

Many of the provisions in the Arizona and Alabama laws have been enjoined. While these laws have garnered political and popular support, it would serve us well to think harder about how they actually work and what they embody. Targeted, proportional immigration control measures differ from broad-gauge attempts to make life unlivable for unauthorized immigrants (and their families) in important ways. Consider the ties that immigrants form over time in the United States. While often characterized as an undifferentiated group of lawbreakers, the U.S. unauthorized population includes:

  • Nearly 6 million who have lived in the United States for 10 years or more, and 1.4 million who have lived in the U.S. for at least 20 years (Pew Hispanic Center).
  • The parents of 4.5 million U.S. citizen children (Pew Hispanic Center)
  • A substantial percentage of the 3.4 million persons whose visa petitions have been approved based on a qualifying relationship with a U.S. citizen or lawful permanent resident (Migration Policy Institute);
  • 2.1 million young people raised and educated in the United States who meet the prima facie qualifications for the DREAM Act (Migration Policy Institute); and
  • 5.2 percent of the US workforce (Pew Hispanic Center).

Deportation-by-attrition strategies have severe consequences not only for them, but for their U.S. families, employers and communities. They are also corrosive of the rule of law and the United States' identity as a nation committed to shared values and generous civic ideals. They seek to deny rights -- to housing, to work, to education, (effectively) to police protection, to enter contracts, to public utilities, even to citizenship -- as a means to an end. What's more, they would criminalize the exercise of long-recognized rights. As such they would undermine the community's well-being and the shared "good" of its members.

A new policy consensus on smarter and fairer enforcement would target violations of the law, not immigrants and their families. It would seek to tailor enforcement measures to the federal government's authority to determine who can enter, who must leave, and who can stay. It would recognize that not all restrictions against immigrants implicate the federal government's authority to regulate immigration, and that the U.S. Constitution applies to persons, not just to citizens.