The issue of immigration has been tossed about like a political football for some time. Democrats argue that migrants who have spent many years in the United States should be permitted to apply for lawful status. Republicans criticize these proposals as "amnesty." But Congress has been unable to agree on comprehensive immigration reform.
Three and a half years into his term, President Obama announced on June 15 a policy to halt deportations for many undocumented immigrants who came to the United States as children. They must be under age 30, have come to the United States when they were under age 16, have lived in the U.S. for at least five years, be either an honorably discharged veteran or a high school graduate, and have suffered no felony or "significant" misdemeanor convictions.
Ten days after Obama revealed his new program, the Supreme Court issued its long-awaited decision on Arizona's SB 1070. Arizona had enacted a repressive law aimed at "attrition [of undocumented immigrants] through enforcement." Five other states followed suit and waited as the high court considered the constitutionality of Arizona's law.
In a victory for those who support a humane immigration policy, the Court overturned three sections of SB 1070: Arizona cannot criminalize unlawful presence in the United States, or working without papers; and the decision to arrest someone for unlawful presence in the U.S. is solely a federal issue. The Court made clear that the enforcement of immigration law is reserved to the federal government.
But unfortunately, the Court unanimously upheld the most controversial provision of SB 1070, at least for the time being. Section 2(b) requires state officers to determine the immigration status of anyone they stop, detain or arrest if they have "reasonable suspicion" the person is an undocumented immigrant. Although the Court didn't address racial profiling in its opinion, how can this statute possibly be enforced without considering skin color, language and clothing?
Section 2(b) says that Arizona officers "may not solely consider race, color or national origin" in the enforcement of this section. But 2(b) effectively requires the consideration of race, color and national origin because it is unfathomable how a law enforcement official could avoid considering those factors in deciding whom to investigate under the new law. Even the most well-meaning officer cannot possibly determine whether an individual may be undocumented without making judgments based on apparent race, color and national origin. As Tucson Police Chief Roberto A. Villasenor noted, "It says you can't use race and ethnicity. If you're not paying attention to race and ethnicity, what other elements are there? ... If it's 95 percent based on race and ethnicity, what's the other 5 percent? No one knows."
The Supreme Court's decision was apparently a compromise, leaving open the possibility of additional constitutional challenges. A majority of the Court was not prepared to rule at this point that section 2(b) will interfere with federal immigration enforcement. Future lawsuits will argue that 2(b) in practice is preempted by the federal government's exclusive jurisdiction over immigration, and that it invariably leads to racial profiling which violates the Due Process and Equal Protection Clauses of the Constitution.
One justice who refused to compromise with his fellow justices jumped inappropriately into the political battle in his dissenting opinion. Antonin Scalia personally attacked Obama's new policy, writing:
The president said at a news conference that the new program is "the right
thing to do" in light of Congress' failure to pass the administration's proposed
revision of the Immigration Act. Perhaps it is, though Arizona may not think
so. But to say, as the court does, that Arizona contradicts federal law by
enforcing application of the Immigration Act that the president declines to
enforce boggles the mind.
Aside from the impropriety of this cheap shot -- which led one Washington Post columnist to call for Scalia's resignation -- the justice is wrong about Obama refusing to enforce the immigration law. There have been more deportations during the Obama presidency than in any other administration.
But to its credit, Immigration and Customs Enforcement (ICE) has directed its officials to use particular care in considering the cases of veterans, members of the armed forces, long-time lawful permanent residents, minors and elderly individuals, those present in the United States since childhood, pregnant or nursing women, victims of domestic violence and trafficking, individuals who suffer from a serious mental or physical disability, and those with serious health concerns.
After the Court issued its opinion, the Department of Homeland Security (DHS) said it will send a directive to federal agents in Arizona that they must continue to enforce the immigration law consistent with the administration's priorities, and should not initiate deportation of those who have not committed serious crimes or are not repeat offenders.
DHS also announced it was suspending 287g joint agreements in Arizona. Under these pacts, the federal government had deputized state and local law enforcement officials to detain undocumented immigrants. The program had led to serious civil rights abuses.
Several civil rights and immigrants rights organizations have signed a letter to Janet Napolitano, Secretary of Homeland Security, urging her to terminate the 287g agreements in Alabama, Georgia, Indiana, South Carolina and Utah, the five states that have enacted laws like SB 1070. The letter also requests that DHS collect data to determine whether state and local police in all six states (including Arizona) are engaged in racial profiling and illegal detentions. This data could be helpful for future lawsuits.
In its opinion, the Court made clear that Arizona police who request an immigration status check from the federal authorities may not extend a detention longer than would normally occur merely because they have not received a response from the federal authorities.
Although the Court struck down three provisions of SB 1070, section 2(b) remains on the books. Instead of gratitude for the backbreaking work migrant laborers contribute to our society, there is an increasingly virulent strain of racism that leads to the targeting of non-citizens. Republican lawmakers are joining together to oppose federal immigration reform, opting instead for a "states rights" approach where each state is free to enact its own racial profiling law.
There is a hopeful sign in California, however, where the legislature recently approved a bill that prevents state police officers from turning over a detained person to federal immigration authorities unless the detainee has been convicted of a felony.
Migrants, no less than U.S. citizens, are entitled to dignity, respect, and human rights. Let us join the voices of compassion and oppose the mean-spirited actions that aim to legalize racial profiling and scapegoat immigrants. Laws like SB 1070 demean us all.
Marjorie Cohn is a professor of law at Thomas Jefferson School of Law and past president of the National Lawyers Guild. Her most recent book is The United States and Torture: Interrogation, Incarceration, and Abuse (NYU Press). See www.marjoriecohn.com.
In addition, Pearce took the bill to an ALEC conference in December of 2009 for approval. At this meeting were representatives of Corrections Corporation of America which has "identified immigrant detention as a profit center important for its future growth".
For the full story and further links:
http://www.prwatch.org/news/2012/07/11676/emails-alec-member-russell-pearce-show-anti-immigrant-law-may-have-been-racially-
It's 31.
"be either an honorably discharged veteran or a high school graduate"
No, GED too.
"a victory for those who support a humane immigration policy"
Laws such as 1070 are based on the federal immigration law--by implication you are saying that law is inhumane. Do you think any control or limit on immigration is inhumane?
"to say...that Arizona contradicts federal law by
enforcing application of the Immigration Act that the president declines to
enforce boggles the mind."
Why do anti-enforcement advocates keep saying that is inappropriately political as opposed to being about the law? That's funny considering everything Obama does with ignoring immigration law is politically motivated and Scalia's statement is clearly about the meaning of conflict of laws, a LEGAL argument. What he means by "boggles the mind" is that Arizona is actually trying to support Congress' law while Obama seeks to thwart it but they argue that it is Arizona in conflict.
"There is a hopeful sign in California, however, where the legislature recently approved a bill that prevents state police officers from turning over a detained person to federal immigration authorities unless the detainee has been convicted of a felony."
A policy which puts anyone but felons above the law is hopeful. Gotcha.
"Migrants, no less than U.S. citizens, are entitled to dignity, respect, and human rights."
But not to preside in our country without permission--you don't seem to recognize that.
n.
1. One that moves from one region to another by chance, instinct, or plan.
2. An itinerant worker who travels from one area to another in search of work.
Ms. Cohn just because the defintion says they can move about different areas or regions, the US immigration laws states that they must do so here with legal documentation, then they can go from state-to-state in pursuit of work. They must be authorized by OUR government to do so, and to do otherwise is a violation that deserves nothing more than what they deserve, a safe return home, and if they continue to violate our laws, like many do, permanent ban from ever entering this country. In case you haven't noticed this country does have a border, a very weak one right now, but hopefully we will get our government on our side for a change and it will actually act on behalf of its LEGAL citizens and start enforcing the laws they all swore to uphold.
-------------Illegal aliens make their first act here disrespecting the laws of this country and by extension, this country and its citizens. They are entitled to a humane removal from this country, and that's it.
-----------Sure it has. It's been repeatedly REJECTED. We tried it once, in 1986, and were lied to. We got the amnesty but not the enforcement of the law that we were promised. The Dream Act doesn't make any pretense of enforcing the law, even against the PARENTS who admittedly broke the law as adults to bring their kids here. And there's nothing to stop future illegal immigration, either.
Any time it comes to enforcing the immigration laws, the illegal foreigners insist that it is racist to apprehend and deport them because it is mainly Latin Americans who are deported. But that comes from the fact that most of the illegal aliens here happen to be Latino. It's not "racism" or "profiling", just pure demographics.
It is about time America stopped listening to people who aren't from here and don't give a fig about what our laws say. We punish our own who violate the laws. They live in fear of capture, get detained for long periods, have their families separated and their lives destroyed by breaking the law and being caught. Just because someone isn't from here doesn't give them permission to ignore laws they don't like, nor should it be granted them. Our laws apply to everyone from everywhere of every color. Why should Latino foreigners be treated differently?
Our laws are deliberately designed to be colorblind including the ones in Arizona and other states. To demand they not be enforced because of race is prejudice of a different sort on it's face.
When someone is stopped for a traffic violation, the officer expects to see registration for the car (he already knows whose it is), insurance (the state has record of whether the car is insured) and a drivers licence. Lacking any of those items will lead to further questions.
If the person speaks only a foreign language in a nation where English is the common tongue, that also calls them into question. One check that's done is running their papers through federal, local and state records. If they have no licence, cannot explain their identity they may be run through ICE computers. If they turn out to be citizens not having their documents on them brought trouble on themselves.
The people who most object to having police ask for ID for any reason appear to be illegal foreigners. Sort of strange because police in their countries insist on it.
All modern nations have immigration laws. What's thing "broken" about America's is lack of enforcement and subsequent uncontrolled immigration. Enforcing our laws is not "racist". Latin countries would just like us to think it is.
Ms Cohn- the law remains the law and local and state police are perfectly entitled to enforce it - even if the Feds do not care to! The reason that the illegals are screaming and targeting Sherriff Joe is that 25% of the illegals apprehended in the US are caught in Maricopa. That just shows what can be done if law enforcement puts their mind to doing their job properly!
"DHS also announced it was suspending 287g joint agreements in Arizona. Under these pacts, the federal government had deputized state and local law enforcement officials to detain undocumented immigrants."
Please get your facts straight before you offer an opinion!
The only part of the 287 (g) program that has been suspended is the roving immigration patrols since now all AZ police will fulfill this function.The balance of the program remains in full force and State and local officers granted 287(g) jail enforcement authority will continue to have extensive immigration enforcement power, including issuing immigration detainers, processing people for immigration violations, and preparing immigration charging documents. This is not even close to being an end to the 287(g) program in Arizona.
Also in the deliberations surrounding 2(b) the Court relied heavily on the fact that Section 2(B) requires police officers to contact the federal government to verify an individual’s immigration status, which is something that police officers could do on their own initiative anyway (and which Congress has in fact encouraged state and local governments to do - United States v. Santana-Garcia)
"Democrats argue that migrants who have spent many years in the United States should be permitted to apply for lawful status."
Guess what Marjorie, they already can apply for lawful status, by returning to their home countries and applying like everyone else in the world does!
Please Ms. Cohn, do not play naive with us. There is a huge difference between making decisions based SOLEY on race, color, or national origin and making decisions based on race, color, national origin, and other facts such as speaking english, having a valid operator's license, having an address in proximity to the place of employment and so forth.
And by the way, I feel fear every time I see a police car, I may be their next target.
We live in a country where the police can pull you over for any = arbitrary reasons.
Might as well not even have any laws, the police pick and choose who they want to pull over arbitrarily. Not just illegals, anyone they want.