There is little to say about Arizona’s new anti-illegal-immigration law that hasn’t already been expressed more eloquently by Stephen Colbert, the perfect spokesman for tragic irony and unintended consequences. Governor Jan Brewer has signed a piece of bad legislation (even the ordinarily staid Economist described the measure as “hysterical nativism”) into bad law. Widely pronounced the toughest immigration law in the country (a point of pride for the bill’s sponsor, state senator Russell Pearce), SB 1070, or the “Support Our Law Enforcement and Safe Neigborhoods Act”, criminalizes both transporting or sheltering an illegal immigrant under any conditions and stopping on a road to hire day laborers, allows individual Arizonans to sue agencies that fail to pursue immigration enforcement, makes private employment of illegal immigrants a state-level offense, and most controversially, requires local police to check the immigration status of anyone they arrest, question, or otherwise contact, if they have “reasonable suspicion” that they might be an illegal immigrant. Though the law also prohibits using race or apparent origin as the only standards for establishing suspicion, as Democracy In America notes, it is “hard to imagine what other metrics agencies could use to systematically decide who might reasonably be suspected of being an illegal immigrant.” The only other option is the unlikely and annoying step of asking everyone in Arizona to carry proof of citizenship at all times.
The law’s most vocal critics cry that it legalizes racial profiling in Arizona. This is an exaggeration. The law’s contrary provisions certainly encourage individual officers to discriminate against Hispanics, but outright racial profiling is still illegal and will surely lead to a challenge on Fourth and Fourteenth Amendment grounds. Still, there is no doubt that it encourages illegal discrimination, and a law that both requires and prohibits police from violating individual civil liberties is bad enough on its own.
Whether or not the law is constitutional is a bigger question. First, there’s federalism: as my colleague notes, when courts have considered immigration enforcement, they have typically ruled that it is primarily a federal matter. Recent efforts by border states to enforce immigration law on their own have flourished only because the federal government has declined to challenge them.
More broadly, the question of which level of government ought to be responsible for immigration enforcement is an interesting one. Practically, the federal government has proven inept and deadlocked when it comes to enacting more liberal immigration law. Meanwhile, border states have been harsh and swift with local laws. In part, this is a function of the curious and polarized politics of the four large border states. Were immigration policy devolved even further, to the as-yet-unrealized secessionist state of Baja Arizona, I like to think we might adopt more enlightened policy. Unfortunately, there are only four state jurisdictions along the U.S.-Mexico border, and Arizona and Texas alone abut about 83 percent of the border’s total length. This leaves little room for the sort of federalist experimentation in immigration policy that might lead to a better policy outcome.
Arizona’s law will also likely face a challenge on First, Fourth, and Fourteenth Amendment grounds. President Obama has already asked the Justice Department to look for violations of federal civil rights law, and issued a stern tweet opposing the new law. Phoenix mayor Phil Gordon is looking for standing to sue. And as long as state agencies actually attempt to enforce the law, there will no doubt be a number of illegal individual searches and arrests. Finally, the component of the law criminalizing day laborers from seeking work may run into First Amendment trouble.
As abhorrent as the law is for now, it will probably be overturned. Forgive me for getting Hansonian, but SB 1070 isn’t about immigration. Like many other human behaviors—politics especially—it is about signaling. My colleague has already explored the political incentives that lead candidates to signal (often specious) affiliation. Governor Brewer’s signature, and Senator John McCain’s support are political signals, not sound policymaking. Both no doubt know that clampdowns backfire, and even that this bill is questionably constitutional, but signing and supporting have high signal value. Such are the incentives of state politics. Meanwhile, as Jesse Walker points out, responses to the law reveal the continued drift from principle towards paranoia among many in the Tea Party movement. To their credit, the Tucson Tea Party avoided any stance on the bill.
My colleague cites a widely-referenced Rasmussen poll that found 70 percent of likely voters in Arizona favor “legislation that authorizes local police to stop and verify the immigration status of anyone they suspect of being an illegal immigrant.” The same poll found 53 percent of likely voters to be concerned that “efforts to identify and deport illegal immigrants will also end up violating the civil rights of some U.S. citizens.” Relevant topline results are available here.
I know better than to feed trolls, but the above poll is a real pet peeve. The internet vitriol attending the new law has been extreme, dualistic, and entirely anticipated. It’s worth noting that the actions of Arizona’s state government and the Rasmussen results do not imply that all Arizonans are racist Nazi cretins, nor that 70 percent of all Arizonans support the law as written, nor that we are all horrible hypocrites for envisioning that expanded police powers might sometimes violate civil liberties. It is, of course, a terrible irony that expressions of opposition to a silly law about collective generalizations so often take the form of silly collective generalizations about Arizonans as a whole.
Finally, one has to wonder what this means for the other big issue in Arizona politics: Proposition 100. Judging by my own news feed, SB 1070 is in the political spotlight among students in a way Prop. 100 was not. Were I in charge of the “Yes on 100″ campaign, I’d be busy trying to link the two, lest the immigration issue (one that doesn’t require the hard work of, you know, actually voting) steals student attention from the boring old sales tax (Protip: look no further than Russell Pearce). Will the new law break Prop 100′s political momentum, or drive more students to the polls? I am with my colleague in hoping that this law spurs sane federal immigration reform. The results of the election on May 18 may prove to be an interesting leading indicator.