Supreme Court Should Strike Down Arizona SB 1070 Provisions

The Supreme Court is considering the landmark case State of Arizona v. United States, which challenges the authority of a state to enact its own immigration laws. The Court will be considering three questions: Is Arizona’s SB 1070 is pre-empted by federal immigration law? Does this law conflict with the federal law? And would the implementation of this law create obstacles to Congress objectives and priorities? The answers: Yes, yes, and yes.

Arizona’s SB1070, is clearly pre-empted by federal immigration law. The courts have consistently ruled that the federal government has exclusive power to regulate immigration, and approve immigration law. Just last March, the 5th U.S. Circuit of Appeals affirmed that principle when it struck down anti-immigrant legislation implemented by the city of Farmer’s Branch, in Texas. Arizona’s law, also conflicts with Federal Law. For example, no federal law requires U.S. citizens to possess identification proving their citizenship and although it does require non-citizens, to carry registration documents, state authorities have no authority or capacity to determine who in their jurisdictions must do so. Furthermore, SB1070 would have a profound impact on the immigration priorities set by Congress and the Department of Homeland Security. Homeland Security, has, for example, set as its highest priority the removal of those individuals who threaten public safety. If Homeland Security is required to respond to every call from Arizona law enforcement officers to verify the status of every person who is stopped, detained or arrested, its precious resources will be diverted from pursuing those who truly pose a danger to the country.

The core provisions of Arizona’s law, then, seem rather obviously unconstitutional; it is hard to see why this should be considered a hard case. But assuming that these obvious challenges can somehow be met, it is nevertheless incumbent on the Court to consider the pretextual nature of the law. While ostensibly an exercise of a State’s constitutional prerogative to regulate in the interest of public safety, the entire world can see that the law was framed for harshly partisan political purposes, with little or no effort made to tailor its provisions for minimum friction with constitutional guarantees. It embodies in fact a whole model of partisan politics, pursued by the most conservative fractions of the Republican Party, to force undocumented immigrants to self-deport by making their lives impossible. Not incidentally, this model also attempts to disenfranchise Latino immigrants and other minorities by adding to barriers, already established by other legislation, to their registration and voting.

The Republican Party cannot afford the regularization and naturalization of even a modest number of currently undocumented immigrants; the votes of such people would tip the party into sudden irrelevance. The party prefers that Latinos stay home on election days, since even the frightened cannot be absolutely sure to stay home, and the party has also moved to remove them from any place from which they might cause trouble. Thus, the flood of anti-immigrant legislation from every state or locality where Republicans enjoy a legislative majority, that has the goal of forcing them to leave the country.

By upholding SB1070, the Supreme Court would bless a political and legislative strategy intended to achieve nothing less than the exclusion from our country’s political and social life of an entire population of politically inconvenient immigrants and other minorities. No appeal to States’ constitutional rights can possibly justify that.

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Miryam Hazan

Miryam Hazán, an Edwin Baker Fellow at Demos, is the author of the upcoming book Mexican Immigrant Politics in America (Cambridge University Press). An expert on US, Mexican, and Central American migration policies, Dr. Hazán has held research and scholarly positions at the Migration Policy Institute, the University of Pennsylvania, Rutgers, and the Tomas Rivera Policy Institute at the University of Texas, Austin. Dr. Hazan has media experience across the Americas, including working for six years at El Financiero in Mexico City.

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