By Brooks Lindsay, Founder and Editor of Debatepedia.org
Has Arizona lost its collective nerve, or done what is necessary? The answers have varied across the nation in recent weeks, after Arizona Governor Jan Brewer signed into law Senate Bill 1070, hard-line legislation designed to identify, charge, and potentially deport illegal immigrants currently residing in Arizona. The law mandates that immigrants carry their papers at all times, and that police verify the legal status of individuals during the course of traffic stops or other law-enforcement actions, and when there is a "reasonable suspicion" that the individuals under question are illegal aliens. The law also allows citizens to sue police officers for not enforcing the law. And, it ratchets-up punishments against those that harbor or transport illegal immigrants and against employers that hire them.
In the broadest sense, Arizona has picked a side in the immigration debate. It favors finding, punishing, and potentially deporting illegal immigrants, instead of seeking ways to integrate them into American society through, for example, a "path to citizenship."
A central principle to supporters is the enforcement of sovereign law. They argue that illegal immigrants are criminals, having broken US immigration laws, so they should be found, jailed, and deported. As Stan Sudero wrote in the Oakland Tribune, "The issue is not ethnic origin, it is criminal trespass. […] The illegal immigrant has chosen to violate our country's laws simply to exploit our free and generous society. […] Mexico would never tolerate such behavior from a foreign national in its own territory." To proponents of Arizona’s law, the matter is simple. It’s a question of whether politicians have the will to enforce US law.
The story, however, is more complicated than that. Many ask, how does the nation or Arizona arrest, imprison, and/or deport over 12 million - or in the case of Arizona 460,000 – illegal immigrants? New York Mayor Michael R. Bloomberg says, "The idea of deporting these 11 or 12 million people – about as many as live in the entire state of Pennsylvania – is pure fantasy. Even if we wanted to, it would be physically impossible to carry out. If we attempted it – and it would be perhaps the largest round-up and deportation in world history – the social and economic consequences would be devastating." For those that accept this conclusion, Arizona’s fight is unwinnable, and the only remaining options are harm reduction, integration, and a path to citizenship for undocumented immigrants.
Arizona’s objectives, though, are more subtle than rounding-up and deporting every illegal immigrant. Instead, it is implementing a policy of "attrition" and deterrence through enforcement. The objective is to encourage undocumented immigrants to "self-deport" under the threat of jail and forced deportation, and to discourage new arrivals with the same threat. This, proponents argue, avoids the difficulties of a large-scale deportation campaign, while ultimately achieving the same goals.
Opponents of the law level a number of moral arguments on this front. They ask, what kind of society are we trying to create? One rooted in exclusion, punishment, and fear, or inclusion, forgiveness, and civic cohesion? Michael Gerson puts it this way in an April 28th Washington Post op-ed: "This law creates a suspect class, based in part on ethnicity, considered guilty until they prove themselves innocent. It makes it harder for illegal immigrants to live without scrutiny -- but it also makes it harder for some American citizens to live without suspicion and humiliation. Americans are not accustomed to the command 'Your papers, please,' however politely delivered." President Obama seems to agree, arguing, "now, suddenly, if you don’t have your papers ... you’re going to be harassed." This kind of an environment, to those fighting Arizona’s law, is inconsistent with American ideals of dignity and privacy, and creates an intolerable cloud of suspicion between neighbors, co-workers, police officers, and government officials.
Supporters contend that this is all too dramatic. Arizona is merely enforcing long-standing documentation requirements for legal aliens and visitors. Kris Kobach writes in an April 28th New York Times op-ed: "since 1940, it has been a federal crime for aliens to fail to keep such registration documents with them. The Arizona law simply adds a state penalty to what was already a federal crime. Moreover, as anyone who has traveled abroad knows, other nations have similar documentation requirements." Carrying immigration documents is just about as easy as carrying one’s driver’s license. Is this really too onerous a burden for immigrants who have been given the privilege to come to the United States on a visa?
Mike Rosen contends in a May 6th Denver Post article this small burden is justified: "As a matter of public policy, it's a question of reasonable tradeoffs for Arizonans. The downside is that some people — citizens, visitors, immigrants and foreign workers "legally in the state may be inconvenienced if asked to identify themselves or show their immigration documents. […] The upside is that by cracking down on illegals in their state, Arizonans (including Hispanics who support this law) will be protected from trespass and violent crime, and save hundreds of millions of dollars in education, medical, social services and criminal justice spending associated with illegal immigrants. I'd take that tradeoff."
But is this an oversimplification of the trade-off? The issue to opponents is not the mere inconvenience of having to prove your identity, but the emotional and social strain of racial profiling and even more overt forms of racism by police offers and others seeking to rid the state of illegal immigrants. As Shikha Dalmia points out in an April 15th, 2010 Forbes op-ed: "the law] opens all kinds of tantalizing harassment possibilities for officials like Joe Arpaio--the notorious but popular Arizona sheriff who has made it his personal mission to root out undocumented aliens from the state by launching crime sweeps in Latino communities on the flimsiest of pretexts. [...] Under the new law, Arpaio could troll Hispanic neighborhoods demanding the papers of anyone breaking, say, a local pooper-scooper law while walking their dogs."
This may be unfair, though, to honorable law enforcers. Arizona’s government rejects the criticism that state police officers will let racism cloud their duty to enforce the law equitably. They also point out that section 2 of the law provides that police officers "may not solely consider race, color or national origin" in making stops or requesting paperwork. Others argue that "reasonable suspicion‖ has been well defined over the years, requiring that police officers consider a broad" totality of circumstances‖, instead of singular factors such as race. In all, supporters seem to give police officers the benefit of the doubt that they will appropriately apply the law.
The question is whether this is too generous, given the reality that illegal aliens are mostly of Hispanic decent (creating an incentive to rely on racial profiling) and that there is some record of police officers displaying racism and/or anti-illegal immigrant sentiments. Officers very well may feel that the ends (deporting illegal immigrants) justify the means (using shaky pretexts to stop Hispanics and ask for their documentation). And, there is no denying that racial profiling of African Americans occurs in many communities across the United States. Why should we deny concerns of it occurring under Arizona’s new law?
Arizona’s government retorts that trust in government and law enforcement officials is essential for sound immigration policy. After all, if we can’t trust the police, then who can we trust?
But, this may be precisely the issue, as enforcement of Arizona’s law could cause distrust between immigrants and police, chilling cooperation on law enforcement matters. Eugene Robinson writes in an April 27th, 2010 Washington Post article: "One of the concrete problems with the law treating undocumented immigrants as criminals is that it gives those without papers a powerful incentive to stay as far away from police as possible. This will only make it more difficult for local police to investigate crimes and track down fugitive offenders, because no potential witness who is undocumented will come forward."
While the law might have this kind of chilling effect on citizen-police cooperation, the dominance of the illegal immigration problem could override these concerns. There are approximately 460,000 illegal immigrants in Arizona (out of 6,595,778), the border is porous, drug-trafficking is rampant, and the police have lost significant credibility as they have turned a blind eye to the laws on the books. It is easy, therefore, for supporters of Arizona’s law to argue that there is no greater criminal and social issue than illegal immigration. As Arizona Governor Jan Brewer said at the bill-signing, "Border-related violence and crime due to illegal immigration are critically important issues to the people of our state […] We cannot sacrifice our safety to the murderous greed of drug cartels. We cannot stand idly by as drop houses, kidnappings and violence compromise our quality of life." With the law receiving 70 percent approval ratings in Arizona, it would appear that the public supports the government prioritizing illegal immigration at the very top of its law enforcement agenda, even if at the expense of trust and cooperation from the Hispanic community.
Moreover, supporters argue the most important moral consideration at stake is protecting US citizens. They say illegal immigration has diminished the quality of life for Arizonans and subjects them to a number of unwanted criminal and economic risks. Enforcing immigration laws will reduce these risks, and 70% appear to agree that this is important. One might wonder what could be more moral, decent, and American than upholding the wishes of these American citizens.
While Arizonans may support their new law, a sticking point remains whether they should be the ones driving immigration policy. As The New York Times wrote in an April 29th editorial, ―The Supreme Court has consistently ruled that states cannot make their own immigration laws. The Arizona debacle gives the Obama administration another chance to make it clear that the nation’s immigration policy cannot be left to a ragged patchwork of state and local laws." Indeed, immigration policies are part of a nation’s image, both inward-looking and outward-looking. Any state immigration law may be viewed as speaking for all Americans.
And, this could explain the heated national protests and debate surrounding Arizona’s law. While there may be room for testing innovative legislation at a state level on some issues, perhaps immigration is off limits.
Many believe a national solution is needed instead, and have been calling for it aggressively. Key Senators such as Harry Reid are clearly listening, and have placed the issue at the top of the agenda, even above climate change. Here may be one of the great ironies of Arizona’s law: for all the frustration it has caused to those that oppose it, it seems the only thing powerful enough to jump-start the wheels of comprehensive immigration reform and a ―path to citizenship.‖ And, as debate surrounding federal reform gets under way, the arguments tested on Arizona’s law will emerge sharpened and ready, all framed around the same philosophical question: deportation or integration?