Opponents Prepare Lawsuits Against New Arizona Law
The backlash against Arizona’s landmark immigration enforcement law continued last week as amnesty proponents prepared legal challenges and urged boycotts of the state. The Obama administration seemed particularly anxious to demonstrate its opposition to SB 1070. On May 5th – the Mexican holiday “Cinco de Mayo” – President Obama held a reception at the White House where he denounced Arizona’s new immigration law. (White House Blog, May 5, 2010). The President said he understood that Arizonans were frustrated with inaction in Washington, but said the Arizona law was not the answer; rather, “comprehensive” immigration reform is the solution. (Id.) He then told the crowd that he has instructed his administration “to closely monitor the new law in Arizona, [and] to examine the civil rights and other implications that it may have.” (Id.)
At the Justice Department, top officials carried out the President’s directive. The Department’s top civil rights attorney, Tom Perez, met with several Arizona officials and community representatives who urged the Assistant Attorney General to challenge the law in court. According to those in attendance, Perez said he had doubled the number of staffers who were reviewing the law and that they were working “around the clock” on it. (Associated Press, May 4, 2010). Appearing on NBC’s Meet the Press Sunday, U.S. Attorney General Eric Holder confirmed that the Justice Department is deliberating whether to file suit against the Arizona law, either on the grounds that it violates the Supremacy Clause or federal civil rights laws. Holder, however, declined to expressly state whether the Department of Justice would in fact take action against SB 1070. (See Meet the Press video, May 9, 2010).
Other preparations to challenge SB 1070 took place at the state level. In Phoenix, Mayor Phil Gordon has decided to pursue a new strategy to stop Arizona’s new immigration law by filing suit with other Arizona mayors. (The Arizona Republic, May 3, 2010). Mayor Gordon had pushed to sue solely on behalf of Phoenix, but was unable to get enough votes from the Phoenix City Council to support a lawsuit. Mayor Gordon said his new strategy – which is already employing the assistance of Washington D.C. law firms — was much more likely to obtain an injunction and ultimately overturn the new law. (Id.)
At least two other cities are also contemplating legal action. The Tucson City Council voted last week to sue Arizona in an effort to overturn the law. (Associated Press, May 5, 2010). Tucson’s mayor noted that much of the city’s economy comes from Mexican tourists and council members expressed concern over the cost of enforcing the new immigration law. The city council in Flagstaff also voted to mount a legal challenge on the grounds that the law is costly and potentially damaging to the tourism industry. (Roll Call, May 5, 2010). In addition to these cities, four other lawsuits were filed last week by the National Coalition of Latino Clergy and Christian Leaders, a researcher who lives in Washington, and two police officers who filed as individuals and not on behalf of their agencies. (Boston Herald, May 5, 2010).
Meanwhile, from Washington, D.C., Senator Chuck Schumer (D-NY) sent a letter to Governor Brewer urging her to put the law on hold while Congress considers “comprehensive” immigration reform. (The Wall Street Journal, May 6, 2010). In the letter, Schumer expressed disgust for her decision to sign the bill and called the law “wrong-headed,” “likely unconstitutional,” and unlikely to reduce illegal immigration. (Id.).Governor Brewer quickly rejected Schumer’s request. (Associated Press, May 7, 2010).
Finally, in an op-ed last week, Governor Brewer decried proposed boycotts of the state as a form of protest. In particular, she urged Major League Baseball commissioner Bud Selig not to strip Phoenix of its chance to host the All-Star Game in July 2011. She argued that such boycotts are misguided and noted that Arizona has been more than patient in waiting for the federal government to take action. She said, “Imagine a sporting event in which rules have been agreed to for 70 years, but the umpires refuse to enforce those rules.” (ESPN, May 5, 2010). Brewer also pointed to the dangerous and unacceptable situation that Arizona is facing due to the consequences of illegal immigration, and reminded readers that President Theodore Roosevelt once said, “No man is above the law and no man is below it; nor do we ask any man’s permission when we require him to obey it. Obedience to the law is demanded as a right; not asked as a favor.” In the face of economic and legal threats, Brewer has consistently maintained that her state had no choice but to act in the absence of federal immigration enforcement or reform. (CBS News, May 7, 2010).
Recent polls show that most Americans support Governor Brewer’s decision to sign SB 1070 into law. The latest New York Times/CBS poll found that 60% of those questioned either agreed with the law or thought it did not go far enough. (The New York Times, May 3, 2010). According to a Fox News poll conducted last week, 61% of Americans think Arizona was right to take action, and a new poll from Investors Business Daily also shows that a solid majority of Americans are standing behind Governor Brewer and the Arizona law, with 60% backing the law. (Fox News Poll, May 7, 2010; Investor’s Business Daily, May 4, 2010).
Senator Jim DeMint (R-SC) introduced an amendment to the financial regulation bill (S. 3217) that would require the completion of 700 miles of double-layer physical fencing along the U.S.-Mexico border within one year. (DeMint Press Release, May 5, 2010). DeMint’s amendment asks Congress to simply follow through on the promise to secure the border that was made four years ago under the Secure Fence Act of 2006. Those requirements were later altered in December 2007 by the Hutchison Amendment to the FY 2008 Omnibus Appropriations Bill, which stripped the requirement that the fence be double-layered and gave Homeland Security wide discretion to use other methods to secure the border (such as vehicle barriers). (See FAIR’s Legislative Update, January 14, 2008) Department of Homeland Security staff (DHS) now report that only 34.3 miles of double-layered fencing have been completed to date. (DeMint Press Release, May 5, 2010; See alsoGAO Report GAO-09-244R). Senators David Vitter (R-LA) and John McCain (R-AZ) are cosponsoring the amendment and they expect many more senators to join DeMint’s effort.
The DeMint fence amendment already passed the Senate once with bipartisan support when Senator DeMint offered it to the FY 2010 Homeland Security Appropriations Bill. At that time the amendment passed by a 54-44 vote in which 21 Democrats and 33 Republicans supported the measure. (Roll Call Vote No. 220, July 8, 2009). Unfortunately, after the fence amendment passed, Democratic leaders gutted the amendment during conference committee, in part because “the Obama administration had opposed rapid expansion of the fence.” (The Hill, October 7, 2009).
The history of the amendment suggests that if the DeMint Amendment receives a vote on the floor, it will likely pass again. Senator DeMint stated last week, “Americans have demanded a real fence to combat the very real problems of illegal immigration that have led to human trafficking, drug trafficking, kidnapping and violence on our border. Congress will never be able to achieve long-term reform to create a legal immigration system that works until we secure our borders. We’ve had rhetoric and promises for four years without results. It’s time we completed the fence and secured our borders to protect American citizens.” (DeMint Press Release, May 5, 2010).
On Tuesday, May 4, Pennsylvania State Rep. Daryl Metcalfe, along with 26 original cosponsors, introduced House Bill (HB) 2479, the “Support Our Law Enforcement and Safe Neighborhoods Act.” (Press Release, May 4, 2010). HB 2479 is an immigration enforcement bill similar to Arizona’s SB 1070, which Arizona Governor Jan Brewer signed into law last month. (See FAIR’s Legislative Update, April 26, 2010).
Like SB 1070, the new Pennsylvania bill contains an anti-sanctuary policy provision that would require a law enforcement officer to make a “complete, full, and appropriate attempt” to verify an individual’s immigration status if – during a lawful stop, detainment, or arrest only – the officer develops a reasonable suspicion that the individual is unlawfully present in the United States. (§5, ¶ 2). HB 2479 also mirrors federal alien registration laws by providing that illegal aliens who violate such laws (8 U.S.C. 1304(e) and 8 U.S.C. 1306(a), which require aliens to register and carry their documents with them at all times) have committed a third degree misdemeanor under Pennsylvania state law. (§6). Finally, like the Arizona bill, HB 2479 provides that its provisions must be enforced “without regard to race, religion, gender, ethnicity or national origin.” (§2, ¶ 6).
HB 2479 includes other immigration enforcement oriented measures that were not included in the Arizona bill. These measures include:
- A requirement that state agencies verify the immigration status of any individual over the age of 18 who applies for federal, state, or local public benefits in the state of Pennsylvania (§4);
- The establishment of a third degree felony for individuals who intentionally engage in smuggling of illegal aliens (§7); and
- Provisions similar to the Legal Arizona Workers Act – legislation that former Arizona Governor Janet Napolitano signed into law in 2007, requiring employers to check the employment eligibility status of each new employee through E-Verify (§§8-10).
At a press conference marking the introduction of HB 2479, Rep. Metcalfe highlighted the findings of FAIR’s 2009 “Costs of Illegal Immigration to Pennsylvanians” cost study, which reports that Pennsylvania’s illegal alien population costs the state’s taxpayers about $728 million per year for education, medical care and incarceration. FAIR President Dan Stein attended the press conference and explained why states are taking action on immigration enforcement: “[Y]ear after year, the federal government has failed in its mission: to enforce these laws.” (Pittsburgh Tribune-Review, May 5, 2010).
On Wednesday, April 28, true immigration reformer Rep. Todd Tiahrt (R-Kan.), along with Reps. Brian Bilbray (R-Cal.), Dana Rohrabacher (R-Cal.), Todd Akin (R-Missouri), and Ken Calvert (R-Cal.), introduced “The Secure the Border Act of 2010” (H.R. 5173). With violence along the border rising to dangerous levels (see FAIR’s Legislative Update, May 3, 2010), H.R. 5173 would implement a number of long overdue measures to secure our porous borders.
Specifically, the Secure the Border Act would:
- Require the Department of Homeland Security to construct double-layered, reinforced fencing along the entire U.S.-Mexico border (§2(a));
- Mandate the installation of additional strategic structures, roads, lighting, cameras, and sensors along the border (Id.); and
- Create a border surveillance program that would continuously monitor the entire U.S.-Mexico border through the use of aerial surveillance technology, sensors, satellites, and other equipment (§4(a)).
Since the bill’s introduction, nine additional Representatives have signed on as co-sponsors of H.R. 5173, including: Gresham Barrett (R-S.C.); Vern Buchanan (R-Flo.); Dan Burton (R-Ind.); Trent Franks (R-Ariz.); Elton Gallegly (R-Cal.); Walter Jones, Jr. (R-N.C.); Kenny Marchant (R-Tex.); Sue Myrick (R-N.C.); Edward Royce (R-Cal.); and Joe Wilson (R-S.C.). (See Cosponsor Listing).
Rep. Tiahrt commented on why he introduced the bill: “The federal government has neglected its responsibility to secure our borders and enforce our immigration laws. Current and past administrations are all responsible. It is vital for our national security and economic welfare that we shut down illegal entry into the United States and get serious about aggressive border protection.” Tiahrt concluded: “We must put an end to the half million illegal immigrants who continue to come across the U.S. border every year. The Secure the Border Act is a dramatic step toward ending illegal immigration and making our country safer.” (Press Release, April 28, 2010).
FAIR has strongly endorsed the Secure the Border Act. FAIR President Dan Stein noted: “The Secure the Border Act demonstrates Congressman Tiahrt’s serious commitment to securing the borders and to the American people, who in poll after poll say they support increased border security as a solution to mass illegal immigration. His legislation clearly puts the priorities of Americans before those of special interests.” (Id.; See also FAIR’s Letter to Rep. Tiahrt, April 27, 2010).
Last week, New York Governor David Paterson announced he would soon begin to grant pardons to criminal aliens to help them avoid deportation. The highly unusual move places Governor Patterson at odds with the Obama administration, which has focused its removal efforts solely on criminal aliens. Ironically, Paterson announced the new policy during his speech at Law Day at the New York Court of Appeals. (See Law Day Transcript, May 3, 2010).
To execute his new policy, Governor Paterson is establishing a Special Immigration Pardoning Board, consisting of five members, to review individual cases over several weeks. Paterson’s office expects an influx of hundreds of new pardon applications by the end of the year. (Associated Press, May 3, 2010).
Governor Paterson said he was moved to grant pardons after having pardoned a Chinese immigrant for a series of muggings committed as a teenager. Nevertheless, Paterson insisted that his office was “separating these cases from ones where there are egregious crimes.” (The New York Times, May 3, 2010). With respect to public safety, Paterson said, “[T]o be sure, there are some individuals whose crimes are egregious or who pose a threat to public safety….But there are others in which delineation is far less clear. In those cases, our national immigration laws do not permit for any redress or mitigating circumstances. But in New York, we think differently. In New York, we believe in renewal.” (See Law Day Transcript, May 3, 2010).
Open borders advocates hailed Governor Paterson’s decision, but immigration enforcement proponents criticized the move. “There are people out there, maybe the governor included, who don’t want to deport anybody, even people who have committed crimes,” said Jan Ting, a professor at Temple University Law School, and a former assistant immigration commissioner. “I understand the impulse, but it’s an impulse that leads to open borders.” (The New York Times, May 3, 2010).