04/25/2012 04:02 pm ET Updated Jun 25, 2012

SB 1070 and "The Real Americans"

Today, the United States Supreme Court is scheduled to hear argument on the validity of the state of Arizona's effort to regulate immigration within its borders. Many observers view this case as among the most important immigration issues this century. At issue is whether a state can pass a law regulating immigration within its borders despite the existence of federal laws regulating such matters. The federal government brought the suit to a stop, or in legal terminology, enjoined the application of the law.

Historically, such matters have been within the domain of the federal government. While most experts view Arizona's efforts as infringing on the Supremacy Clause of the United States Constitution, supporters of the law believe the state had little choice in light of their belief that the federal government failed to adequately enforce its laws. Federal Judge Susan Bolton, in a lengthy and thoughtful opinion agreed with opponents of the law and enjoined key provisions from being enforced. Among the provisions enjoined was an obligation on state law enforcement and other officials to determine the immigration status of those believed to be "illegal immigrants." Critics have said this law invites racial profiling. Judge Bolton's decision was subsequently upheld by a federal circuit court in a 2-1 opinion. Now, the Supreme Court will be the ultimate voice on the matter.

Many scholars, and a few pundits, have opined on the court's likely determination, with the majority of legal experts focusing on why the law should be struck down. The arguments for their position include: (1) Supreme Court precedent supporting the federal government's authority over immigration; (2) the fact that immigration has historically been a matter regulated by the federal government and its relevant federal legislation; (3) foreign and national security policies strongly suggest the federal government maintain its authority, evidenced by the Plenary Powers doctrine; and (4) arguably the strongest reason to strike down SB 1070 -- Arizona's law creates new immigration-related crimes with penalties that are different from the federal ones, thereby creating conflicts with, and frustrating, federal authority over immigration. In other words, there are a host of reasons why the court should not endorse the eventual creation of 50 or more immigration policies in the states, which will create havoc in terms of our relations with other countries, and will ultimately prove to be inefficient and ineffective in terms of its goals.

While the arguments above are forceful reasons to strike down SB 1070, let me suggest a few other reasons why the court should not uphold the Arizona law. In addition to fostering the likelihood of numerous and often inconsistent laws from several states, and even local governments, such efforts will ultimately harm the economies of these respective governments. Indeed, Arizona is already living these consequences, as the National Immigration Forum observes:

Independent analyses of the potential cost of the new law to the state have demonstrated that it is prohibitively expensive. Add in Arizona's already massive budget deficit, and it's hard to see how Arizona can afford to enforce its new law. Additionally, the new law triggered a national backlash that hurt the state's tourism and convention industry, exacerbating Arizona's already severe budget and economic woes. Multiple lawsuits triggered by the legislation will cost the state millions as it will have to defend the new law in court.

Finally, potential targets of laws like SB 1070 are not limited to immigrants, be they documented or undocumented. Such laws that target individuals for merely appearing to be an immigrant (code for Hispanic or other racial and ethnic minorities), will inevitably lead to targeting individuals who do not appear to be "American." The slippage effect of such laws was captured by Professor Niel Gotanda in what he describes as the Miss Saigon Syndrome. Gotanda observes that Hispanic, and other non-African-American racial and ethnic minorities, face the burden of being presumed foreign irrespective of their actual citizenship status.

In other words, Gotanda warns us against fostering implicit bias against those appearing to be something other than American. SB-1070, and laws like it, make too many members of society suspect; numerous accounts in Arizona support this assertion. Thus, if Supreme Court precedent, sound foreign and economic policy don't persuade you, perhaps the fact that one day you or your grandchildren may be presumed "illegal" will, if for nothing else -- out of self-interest -- make you rethink such unsound laws?