FAIR Legislative Update May 3, 2010
Amnesty Forces Scramble to Challenge Arizona’s New Immigration Law
One week after Arizona Governor Jan Brewer signed a tough immigration enforcement measure into law, amnesty forces are scrambling to organize protest rallies, boycotts, and file lawsuits. Despite the fact that a large majority of Arizonans support the law (64%) and that Arizona Governor Jan Brewer’s approval ratings jumped sixteen points after signing the law, many groups and individuals from outside the state and even outside the country are voicing their opposition. (The Washington Post, April 29, 2010; Rasmussen Reports, April 28, 2010). Joining in the fray, President Obama, Attorney General Eric Holder, and Department of Homeland Security Secretary Janet Napolitano also sent a clear message that the will of the people in Arizona is irrelevant, as the federal government prepares an attack on the popular state law.
To that end, President Obama last week directed a team of top government attorneys from the Department of Justice (DOJ) and the Department of Homeland Security (DHS) to devise a plan to challenge the Arizona immigration law. (Los Angeles Times, April 29, 2010). This is an extraordinary step, as it is so rare for the federal government to directly challenge a state law even constitutional law experts are unable to cite a comparable example. (The Washington Post, April 29, 2010). Nevertheless, hoping to prevent the law from taking effect and to discourage other states from enacting similar measures, the administration is reportedly exploring different options. These include filing a lawsuit against the state or joining a lawsuit brought by special interest groups who are claiming the bill unfairly targets Latinos. (Los Angeles Times, April 29, 2010). One possible legal ground they are exploring is the doctrine of “preemption” – which they would use to argue that the state’s law illegally intrudes on immigration enforcement, which they argue is solely a federal responsibility. (The Washington Post, April 29, 2010).
However, if the Obama Administration argues the doctrine of preemption applies, it could expose the fact that the Administration has wholly abandoned its responsibility to secure the border and enforce our immigration laws, ultimately forcing Arizona to enact the law. Indeed, supporters of SB 1070 argue that Arizona was left with no choice but to act after enduring years of the federal government’s failure to secure the border. Senator Jim Inhofe (R-Okla.) described the law a response to the federal government’s inaction, “I think the frustration is that the federal government isn’t enforcing the laws, so we’re going to do it on the state level.” (The Hill, April 26, 2010). Senator John McCain (R-Ariz.) said that his state had to pass a tough immigration law because Obama has failed to “secure our borders.” (The Associated Press, April 27, 2010). He added that the situation in his state is “the worst I’ve ever seen.”
Further complicating Obama’s plan is the fact that similar preemption arguments failed when Arizona passed a 2007 law that sanctioned employers for knowingly hiring illegal immigrants. Kris Kobach, a senior Justice Department official under George W. Bush who is now a constitutional law professor, said of a preemption challenge, “They tried this on for size already, and it failed.” (The Washington Post, April 29, 2010). Kobach, who helped draft the legislation, pointed out that the law does not seek to regulate immigration but merely adds state penalties for what are already federal crimes, and under the legal doctrine of “concurrent enforcement” states are allowed to ban what is already prohibited by federal law. (Los Angeles Times, April 29, 2010).
Amnesty forces have already filed two lawsuits challenging the Arizona bill. The first, filed by The National Coalition of Latino Clergy and Christian Leaders alleges that the measure usurps federal enforcement responsibilities. The second, filed by Martin Escobar, a Tucson police officer filed suit seeks prevent the law from going into effect. (Los Angeles Times, April 29, 2010). Tucson police spokesman Sgt. Fabian Pacheco said Escobar was not acting on the department’s behalf. (The Washington Post, April 29, 2010).
Even the government of Mexico is getting involved. The Mexican government – battling drug cartels for control of territory along the Mexican border – ironically issued a travel warning urging Mexican citizens to be careful in Arizona and telling them to expect harassment and questioning. (Los Angeles Times, April 28, 2010). In addition, the mayor of Mexico City, Marcelo Ebrard, announced he would try to join the lawsuits seeking to overturn the law, stating that the measure is “a planned Apartheid against Mexicans.” Id. Ebrard was unable to explain how the Mexican capital could overcome its lack of legal standing in U.S. courts, but he did say the issue could be taken to international human rights forums. Id.
Others outside the state of Arizona, including the people of some cities in California, have reacted to Arizona’s new law by calling for boycotts. (Los Angeles Times, April 28, 2010). Several members of the Los Angeles City Council signed a proposal for a boycott, calling for the city to “refrain from conducting business” or participating in conventions in Arizona. Councilwoman Janice Hahn, who coauthored the proposal, seemed unconcerned with the logistical complications of such a boycott and made the absurd statement that, “When people are asked to show their papers, it brings back memories of Nazi Germany.” Clearly Councilwoman Hahn is unfamiliar with current federal law, which for decades has required aliens to carry their immigration documents with them “at all times.” (8 U.S.C. § 1304(e)).
In addition, officials in the sanctuary city of San Francisco introduced a similar resolution and Mayor Gavin Newsom imposed an immediate moratorium on city-related travel to Arizona, with exceptions. The American Immigration Lawyers Association is reportedly moving its fall convention from Scottsdale to a new location. Members of the District of Columbia Council are also planning to introduce a resolution calling on the city government to boycott Arizona, though it is not clear if D.C. actually does any business with Arizona. (The Washington Post, April 28, 2010). In the face of these threats, Governor Jan Brewer has remained calm and has stated that she isn’t concerned about possible boycotts. “I believe it’s not going to have the kind of economic impact that some people think that it might.” (Los Angeles Times, April 28, 2010).
Indeed, there are many who are voicing support for the Arizona law and lawmakers in other states have been prompted to consider similar legislation around the country. In Utah, state Representative Stephen Sandstrom (R) is pushing an identical bill because Utah is “becoming a kind of sanctuary state.” (Los Angeles Times, April 29, 2010). Many illegal alien day laborers say they will leave Arizona because of the new law, and Jose Armenta, an illegal alien from Mexico, is already planning to move to Utah. (The Associated Press, April 28, 2010). Public officials in Ohio have asked Ohio Governor Ted Strickland to ensure that a similar law is passed in Ohio. (The Enquirer, April 27, 2010). Meanwhile, a group of state lawmakers in Oklahoma said they plan to introduce a bill similar to Arizona’s and Texas State Representative Debbie Riddle plans to introduce a similar bill. Republicans running for governor in Colorado and Minnesota have also expressed support for the crackdown. (Id.)
There has been much misinformation about the content of the law since it was first reported, perpetuated by many in the national media who continue to get the facts wrong. Last Thursday, weeks after the bill was passed by the Arizona House, The Washington Post reported that the “law criminalizes illegal immigration by defining it as trespassing and empowers police to question anyone they have a “reasonable suspicion” is an illegal immigrant.” (The Washington Post, April 29, 2010). Unfortunately the reporters at the Washington Post were looking at the wrong version of the bill. The language regarding trespassing was stripped from the bill weeks ago and a simple search of the bill as enacted reveals no mention of trespassing. (See FAIR’s Summary of Arizona SB 1070).
Additionally, the Arizona law does not empower police with any more authority to stop individuals or any additional authority to question individuals about their immigration status. The Supreme Court has addressed numerous times the authority of law enforcement officers to do both. (See, e.g. Terry v. Ohio, 392 U.S. 1 (1968); Muehler v. Mena, 544 U.S. 93 (holding 9-0 that during a lawful detention, a police officer’s inquiry about immigration did not constitute a Fourth Amendment intrusion and did not require reasonable suspicion.)) Instead, the Arizona law directs the police to attempt to determine someone’s immigration status only after a lawful stop, arrest, or detention, and then only if the officer has a reasonable suspicion that the individual is an illegal alien. (HB 2162, amending SB 1070). As Andrew McCarthy put it, “Essentially, it criminalizes (as a state misdemeanor) something that is already illegal (namely, being present in the United States in violation of federal law), and it directs law-enforcement officers to, yes, enforce the law.” (National Review, April 29, 2010).
May Day Amnesty Rallies Turn Violent
Amnesty forces staged protest rallies and demonstrations across the country on May 1, International Workers’ Day. (The Washington Post, April 29, 2010). Such “May Day” rallies have become an annual ritual for special interest groups and amnesty advocates since 2006, when they came out to urge Congress to pass a sweeping amnesty bill. Arizona’s recent crackdown on illegal immigration ignited a renewed sense of urgency, and protesters took to the streets to decry the new law and demand amnesty. (The Washington Post, May 1, 2010).
The rallies turned violent as thousands of marchers swarmed Los Angeles, hundreds gathered in Phoenix, and dozens were arrested in Washington, D.C. (ABC News, May 1, 2010). A rally in Santa Cruz turned into a riot when some of the masked protesters smashed storefront windows and painted graffiti signs on dozens of businesses. (NBC News, May 3, 2010). Bearing torches, they stormed the city’s main street on Saturday night and vandalized at least 15 businesses, causing at least $100,000 worth of damage. (San Francisco Chronicle, May 3, 2010). In San Francisco, ABC-TV affiliate KGO reported that May Day marchers attacked supporters of the Arizona law, punching and kicking them while calling them racists. (ABC News , May 1, 2010).
The protests resulted in arrests around the country, including the arrest of U.S. Congressman Luis Gutierrez (D-Ill.), who was arrested along with 34 others who staged a sit-in in front of the White House. (The New York Times, May 1, 2010). It appears that Rep. Gutierrez had every intention of disobeying police orders and getting arrested as he wore a t-shirt that read, “Arrest me, not my friends.” (See The Hill, May 1, 2010) Amnesty advocates promised civil disobedience and they delivered violence courtesy of angry mobs gathered throughout the nation, all in the name of open borders.
Napolitano: Spillover Violence in Arizona is Mere “Perception”
Testifying before the Senate Judiciary Committee last week, Homeland Security Secretary Janet Napolitano played down the violence along the border, stating that “[Arizona] is a place where there is a perception that there is spillover violence.” (Webcast, April 27, 2010, emphasis added). Remarkably, Napolitano made the statement just seconds after she noted that the drug cartels “literally have fingertips that go into communities all over the nation” and that Phoenix has been the center of “battles” between drug cartel distributors. (Id.) Still, Secretary Napolitano seemed to dismiss the seriousness of the violence, insisting that “the plain fact of the matter is from a numbers perspective, the numbers at the border have never been better.” (Webcast, April 27, 2010).
During the hearing, Senators from both sides of the aisle expressed serious concern about increasing border violence. Chairman Pat Leahy (D-VT) said, “[W]e are experiencing historic levels of drug related violence that must be brought under control – families being murdered, law enforcement being murdered, officials being murdered, and brazen shoot outs.” (Webcast, April 27, 2010; See also Leahy’s Written Statement, April 27, 2010). Committee Ranking Member Jeff Sessions (R-AL) echoed his words: “The violence…is increasing and is a serious threat to law abiding people. In Arizona and other places along our southern border, the power of these drug cartels is very real. The power of the coyotes who bring people in illegally is very real, and it’s got to be confronted in a very serious way.” (Webcast, April 27, 2010). And when pressed by Senator Sessions about the need to help local law enforcement officials combat this violence, Napolitano — who has been an outward critic of Arizona’s new immigration law — responded, “[I]n my judgment, what we need to be doing is working with local law enforcement so that you have combined and leveraged federal resources with local. (Id.)
Napolitano’s comments before the Judiciary Committee came after a string of violence near the border involving U.S. citizens. Just 45 days earlier, drug cartels executed a gruesome murder of three people with ties to the U.S. Consulate in the Mexican border city of Ciudad Juarez (FOX News, April 6, 2010); 36 days earlier her own department issued a safety alert to law enforcement officers in west Texas warning of retaliatory killings by Mexican “assassin teams” (See FAIR’s Legislative Update, April 12, 2010); and exactly one month prior, Arizona rancher Rob Krentz was murdered near the U.S.-Mexico border by a suspected illegal alien (See FAIR’s Legislative Update, April 5, 2010). Four days after the hearing, an Arizona sheriff’s deputy was ambushed and shot by illegal aliens with an AK-47 about 50 miles south of Phoenix. (The New York Times, May 1, 2010) The encounter led to a massive manhunt in which Arizona law enforcement deployed scores of officers and dispatched helicopters to search a 100 mile radius. (Id.)
Napolitano’s suggestion that the southwest border is more secure than ever was likely meant to lay the groundwork for a mass amnesty. In fact, her comments came in response to a question from Chairman Leahy in which he asked “Can we do both things? Secure our border, and have comprehensive immigration legislation?”(Webcast, April 27, 2010). Napolitano’s answer: “[C]omprehensive immigration reform should be in our sights.” (Id.).
Democrats Unveil Outline for Amnesty
Thursday evening, Senate Majority Leader Harry Reid (D-Nev.) and several of his colleagues, Senators Dick Durbin (D-Ill.), Bob Menendez (D-N.J.), Chuck Schumer (D-N.Y.), and Dianne Feinstein (D-CA), released a proposal for sweeping amnesty legislation they hope to introduce this year. At the press conference surrounding the release, Senator Reid said Republicans and Democrats agreed that the existing immigration system is broken. He said the proposal he was unveiling amounted to an invitation for Republicans to work with his party on immigration reform.
The proposal, which the Senators dubbed the REPAIR (Real Enforcement with Practical Answers for Immigration Reform) plan, did not come in the form of a bill, but a 26-page narrative describing what would be the main components of so-called “comprehensive immigration reform.” The plan contains many of the provisions that made up the 2007 Bush-Kennedy amnesty bill (S.1639). It contains a mass amnesty program (called a “broad-based registration program”); a guest worker program with a path to citizenship; AgJOBS; the DREAM Act; an employment verification proposal based on a biometric social security card; and massive increases in legal immigration.
Unlike S.1639, the Reid proposal includes a commission on employment-based immigration to recommend policies that promote growth “while minimizing job displacement and wage depression and unauthorized employment”— a description that seems to concede that these are the natural result of our current immigration system. This commission would be able to declare immigration emergencies, meaning a situation in which our employment-based system “is either substantially failing to admit a sufficient number of workers for the needs of the economy or is substantially admitting too many foreign workers.” After declaring an emergency, the commission would submit recommendations for changes to Congress and Congress would then be required to approve or vote down the recommendations. (See pp. 21-22 of the proposal).
Also new are provisions that would preempt state and local ordinances regarding employment verification or immigration enforcement. This clearly represents an attempt by authors to strip Arizona’s new immigration law from the books, as well as the laws from many other jurisdictions that have passed laws encouraging immigration enforcement. While amnesty advocates are demanding sweeping preemption language in the wake of the Arizona law, big business lobbyists have long been seeking a similar provision to protect them from states requiring the use of E-Verify.
Finally, the proposal contains numerous promises of future enforcement of our immigration laws. It directs DHS to increase the number of Customs and Border Protection agents and ICE agents, and also states that equipment and technology used by these agents will be upgraded. It also authorizes the Department of Homeland Security to dispatch the National Guard to the border “as needed.” (p. 2) Perhaps most remarkable are the sweeping, grandiose statements of how this particular proposal will change the current state of immigration enforcement in a way that could not currently be done without legislation. “[S]tates will be quickly reimbursed for the costs of incarcerating and transporting aliens,” it reads. (p. 7) “DHS will promptly identify, investigate, and initiate removal proceedings against any nonimmigrant” who exceeds his authorized stay or otherwise violates the term of his visa. (p. 6) And finally, “[T]here will be zero tolerance for illegal entry and reentry into the U.S.” (p. 5)
Across Capitol Hill, there was a wide disparity of reaction to Senate Democrats’ attempt to put immigration on the agenda. President Obama lauded the Senate Democrats’ plan. While acknowledging lawmakers may have little appetite for tackling immigration reform, Obama nevertheless said, “We can no longer wait to fix our broken immigration system, which Democrats and Republicans alike agree doesn’t work.” House Minority Leader John Boehner (R-OH) dismissed a Democratic push for immigration reform as a “cynical ploy” to drum up midterm election votes, saying that “no one believes” it will pass in Congress. (Politico, April 27, 2010). House Speaker Nancy Pelosi was more cautious in her remarks. “[A]s I said when President Bush was president and I’ll say it when President Obama is president….If there is going to be any movement in this regard, it will require presidential leadership, as well as the willingness to move forward in the Congress.” (Politico, April 29, 2010)
See FAIR’s press release and summary of the Reid-Schumer-Menendez proposal.