Conservatives just ain’t what they used to be. From the Big Brother program of unwarranted domestic wiretapping to military spending in Iraq that was so great it wasn’t even reported on the annual budget, the Republican party has been wandering far from its small government roots. Of course, a party betraying its ideological ideals is as old as the Republic herself, and shouldn’t surprise anyone who has been following US politics for more than about five minutes. But recent legislation from Arizona is about to take that dichotomy to a new level.
Last week, Arizona enacted SB 1070, a law designed to aggressively enforce federal legislation prohibiting undocumented workers. Section E of the bill states, that a cop “without a warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States.” Subsequent portions make it clear this is not granting permission, but instituting a mandate.
At first glance, this may appear to be a simple case of a state stepping in where the federal government has failed. After all, the feds have thousands of miles of border to patrol, but Arizona need only concern itself with its own. And in the wake of horrific violence boiling over the border from Mexico’s drug war, it seems that Arizona’s new immigration law is a reasonable approach to a dire situation.
There are several problems with that perspective, however. First and foremost, as the circumstances of the law’s drafting dictate, is the practical effect of the law. This law does nothing to stem the tide of illegal immigrants pouring over the Arizona border each year. Requiring that law enforcement check documentation on anyone “the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States” necessitates racial profiling, no matter what other clauses or revisions of the law proclaim. In Arizona, the threat of illegal immigration comes from Mexico, and the only practical application of the mandate is a specific targeting of those who appear to be of Mexican heritage, whether in language or appearance.
Never mind that more than a century of judicial precedent forbids such a targeted audience for scrutiny. Never mind that it trespasses upon the civil liberties of citizens and non-citizens alike. The only practical, feasible application of the mandate is that law enforcement is required to demand documentation from those who appear to be from Mexico. No amount of boilerplate prohibitions on racial profiling or the follow-up patch enacted on Friday will change that. According to the bill’s sponsor, Arizona State Senator Russell Pearce, the follow-up law’s changes were clarifications “just to take away the silly arguments and the games, the dishonesty that’s been played.” But they’re not silly arguments, and they should trouble conservatives who value minimalist government intervention in the lives of individual citizens most of all.
Constitutionally, Arizona’s law doesn’t have a judicial leg to stand on. From Chae Chan Ping v. US (1889) to Lozano v. Hazleton (2007), US courts under conservative and liberal justices alike have consistently ruled that while a state has the right to secure its borders in pursuit of its responsibility to protect the general welfare of its citizens, only the national government can legislate or prosecute instances of immigration. Though Arizona’s law is redundant by nature (federal law has already defined what constitutes illegal immigration and SB 1070 doesn’t add anything new to that definition), it is clearly inconsistent with the parameters of state power set by the Framers of the Constitution. A state may not legislate on issues of immigration, no matter what that legislation entails (likewise, a state may not ignore federal immigration legislation, as some ‘sanctuary cities’ pretend they can without consequence). Though a state’s right to defend itself is consistent with conservative ideology, to do so at the expense of the liberty of citizens and a massive expansion of government power of surveillance certainly is not.
But this law is not about protecting Arizona. It’s a desperate attempt, groping in the dark against terrors we know we can’t fight alone. It’s understandable. When an American citizen is gunned down on his own property by criminals who are in the country illegally, and the federal government is distant and disinterested, it’s hard to blame the state for retaliating on its own terms. But as robust as this law seems in the face of illegal immigration, it only creates more problems.
Law enforcement’s already daunting job in stemming the tide of violence from Mexico’s drug war as its spills over the border will be made even more difficult by this law. Faced with this new mandate to investigate immigration status from traffic stops to “local civil ordinances” (anything from complaints about loud noise to an unkempt front lawn), officers will need to choose between focusing on peacekeeping and fulfilling the new law.
Though proponents argue against its negative effects on fighting crime, the law cripples law enforcement at its most basic level. Officers will lose their ability to distinguish between perpetrator and victim. Instead of stopping the human trafficker alone, this law mandates that his victims be given equal treatment. Considering the US’s weak anti-trafficking laws (you get more jail time for pirating music than forcing a child into prostitution in this country), if the traffickers are clever, which they are, they can exploit that weakness and suffer lighter legal consequences than their victims.
This law will also drastically set back the most effective method of policing in marginalized communities, community policing. Cops depend on the immigrant community in hot spots to provide evidence to help them catch violent criminals. With Phoenix’s new status as the kidnapping capital of the country (and approaching the second in the world), community policing has never been more important to Arizonans. This law makes it impossible for police to maintain the trust they’ve built with non-violent undocumented workers who serve as valuable sources of information.
The law also creates a humanitarian crisis. Its provisions (which were not amended by Friday’s revisions) are written so broadly that they mandate arrest for anyone found with undocumented workers who are suspected of aiding them. In practical application, clergy, medical workers, or even good samaritans giving them a ride are subject to criminal investigation, detention, and prosecution.
This analysis only scratches the surface of the problems with Arizona’s new immigration law. It would take far more space than is available here to plumb the depths of its inadequacy to prevent violent criminals from fighting the Mexican drug war in the US, or the law’s contribution to the growing racial cleavage in the border states between immigrants from Latin America and those of us whose ancestors immigrated only a couple hundred years earlier.
In addition to these weaknesses, the law is ineffective in its goal of solving the problem of illegal immigration. It is but the first step in a legislative attempt spearheaded by the misguided State Senator Pearce to make Arizona so inhospitable to people of Mexican descent that they won’t come to his state. Next on his agenda is a bill that would require public school teachers to report children of illegal immigrants to the state in order for the state to calculate the cost of their education, then take action to bar them from public education services. The fact that such attempts in two other states were struck down in recent years doesn’t seem to matter. He is already in the process of enacting legislation to remove bilingual teachers from ESL classes in schools in Arizona.
What Pearce and his fellow Arizonans who favor such draconian legislation fail to realize is that the only way to ‘solve’ the problem of illegal immigration is to enact policies that help law enforcement crack down on violent criminals in the country illegally, encourage undocumented workers to follow proper channels to achieve legal residency, and put their children on the path to citizenship. Other states are doing it. Texas Governor Rick Perry, no friend to namby-pamby liberal amnesty plans, has pursued policies that will allow just those transitions, and Texas has a longer, more porous border than Arizona and has dealt with an incredibly complicated relationship with Mexico since long before Arizona was recognized as a territory.
In short, it takes more than a kneejerk reaction to fix this legitimate problem. As conservatives often say in response to gun control policy, ‘if you outlaw guns only outlaws will have them.’ Likewise, Arizona’s new law will ensure that the only people in the state illegally are those who do not fear the police, that Arizona’s police will lose even more power to stop them, and that Arizona’s Hispanic population, whether citizens, residents, or undocumented immigrants, will lose another piece of their liberty based on nothing other than their ethnic identity.
Give me your tired, your poor, indeed. ‘