AALS NEW YORK—IMMIGRATION REFORM



Law & Society Association 2011 Annual MeetingPanel: Constructing and Dissolving Boundaries: Federalism and Distribution of PowersPaper: Immigration Law and the Legitimation of Discrimination (Adapted from Kevin R. Johnson, The Racially Disparate Impacts of Arizona’s S.B. 1070 & the Failure of Comprehensive Immigration Reform, ASU Law Journal for Social Justice (2011), available at R. Johnson, UC DavisI am pleased to be on this panel on “Immigration Law and the Legitimation of Discrimination.” My paper analyzes the use of “Color-Blindness” in the immigration debate in the United States. Generally speaking, color blindness is an approach to issues of race and civil rights embraced by several Justices on the Supreme Court and, among others, opponents of affirmative action. My paper contends that U.S. immigration law provides color-blind, facially neutral proxies that allow for the targeting specific groups of people, namely working class Latinos, for immigration enforcement. I offer two examples of immigration color-blindness at work: (1) Arizona’s immigration law known as S.B. 1070; and (2) the failure of Congress to enact comprehensive immigration reform.Debate over immigration continues across the United States. It is not isolated as it once was to the Southwest and llo report suspected undocumented immigrants to federal authorities, local emplloyees ncies in arizona,arge urban cities. From those who advocate tough immigration measures, we hear the consistent denial that they are not anti-immigrant, not anti-Mexican, and not racist. They instead are simply anti-“illegal” immigrant. This is often followed with the stinging rebuke: “what part of illegal don’t you understand?”, a statement intended to end any further discussion.At the same time, Latinos in the aggregate advocate for immigration reform and oppose enforcement-oriented measures. This is consistent with the fact that Latinos are disparately affected by immigration enforcement and, for similar reasons, the passage or failure of immigration reform. Many firmly consider immigration to be a civil rights issue. For at least the last century, immigration law and enforcement in the United States has been the near-exclusive province of the federal government. State and local governments generally have not been permitted to regulate immigration. Texas or Oregon, for example, cannot keep Californians, or other foreigners, from moving there. A famous example of a state impermissibly seeking to regulate immigration is California’s Proposition 187, which was struck down by the courts for intruding on the federal power to regulate immigration. The anti-Mexican, anti-immigrant campaign for the initiative included ads of black-and-white police style footage of migrants scrambling near the border with the narrator stating ominously “They keep coming.” You all probably can guess who the “they” are.Recent years have seen a dramatic rise in state and local efforts to regulate immigration. The failure of Congress to pass comprehensive immigration reform helps explain the surge. Another explanation is that new Latina/o immigrant communities have emerged in parts of the United States, including rural areas of the Midwest and South that had not previously seen large numbers of immigrants.S.B. 1070: In 2010, the Arizona legislature passed S.B. 1070. The U.S. Department of Justice, among others, filed suit and claimed that the bulk of the law unconstitutionally intruded on the federal power to regulate immigration. A court enjoined the critical immigration provisions of S.B. 1070 from going into effect and the U.S. Court of Appeals for the Ninth Circuit affirmed.Proponents and opponents of S.B. 1070 agreed that the law was the most enforcement-oriented state or local immigration measure out there. Its preamble states that the act was “intended to work together to discourage and deter the unlawful entry and presence of aliens . . . .” That reference is telling. “Aliens” is a term of art borrowed from federal law that, in the context of the demographics of Arizona, is color-blind code for Mexican and Central American immigrants. Previous code used in the laws of some states in the early 20th century that barred aliens “ineligible for citizenship” from owning certain real property. At the time, an immigrant had to be white to be eligible for naturalization and thus for U.S. citizenship. Although facially neutral, the land laws in operation had devastating impacts on Asian immigrants who, because of their race, were ineligible for citizenship.Perhaps the most controversial aspect of S.B. 1070 is its requirement that local police verify the immigration status of persons of whom they have a “reasonable suspicion” are undocumented. Many Latina/os expressed fears of racial profiling by local police. About one-third of the Arizona population is Latino, including many U.S. citizens and legal immigrants. Their fear is not without basis in recent history. In 1997, in Chandler, Arizona, a suburb of Phoenix, local police, with state and federal support, engaged in a massive immigration enforcement effort in the name of urban renewal that focused on businesses that served Latina/os, people who spoke Spanish, and Latinos generally. In addition, Maricopa County Sheriff Joe Arpaio often brags about his efforts to crack down on “illegals”; his office is regularly sued for alleged civil rights violations of Latina/os and immigrants.The defenses to claims that the Arizona law reveal the legitimizing role of “color-blind” defenses to tough-on-immigration positions.CLAIM NO. 1: S.B. 1070 is not racially discriminatory because racial profiling is against the law. That is not so. The Supreme Court has stated that “Mexican appearance” may be one of many factors justifying an immigration stop. Racial profiling has been a long time problem with the Border Patrol. It also has been a problem with state and local law enforcement officers seeking to enforce the immigration laws. CLAIM NO. 2: S.B. 1070 simply “mirrors” federal law. This also is not true. The Arizona law criminalizes conduct not criminalized by federal law; more importantly, the law affords state and local governments enforcement authority over the federal immigration prehensive Immigration Reform: The debate over comprehensive immigration reform often is couched in terms of being about immigration, not about the race of the immigrants. However, the passage – and failure – of immigration reform will undeniably have disparate racial impacts.Generally, most comprehensive reform proposals include three components.FIRST. More enforcement is the least controversial politically. Enforcement has been the highest priority of the Obama administration. Removals and border apprehensions fall squarely on Latinos. Moreover, many Mexican citizens have died along U.S./Mexico border due to increased enforcement efforts commenced in the 1990s.SECOND. Guest worker program and/or other provisions addressing U.S. labor needs. Roughly 60 percent of the undocumented population is of Mexican origin. Today, we have segmented labor markets with a racial caste quality to them; law operates in one market but not the other. Creating legal avenues for low- and medium-skilled workers from Mexico to lawfully come to the United States would moderate the magnet for undocumented migration from Mexico.THIRD. A Path to Legalization/Amnesty. This, by far, is the most controversial component of comprehensive immigration reform. The tenor of the debate over amnesty for “illegals” differs significantly over tax, parking ticket, and gun amnesties, which the public often embraces with aplomb. Because many undocumented immigrants are Latina/o, legalization would benefit many Latina/os. Amnesty for the undocumented is an emotionally-contested proposition. In 2008, with President Obama’s election, immigrant rights advocates expressed optimism, optimism that has faded. President Obama named Janet Napolitano, the former Governor of Arizona, as Secretary of the U.S. Department of Homeland Security; she has championed immigration enforcement, with the promise of future improvements for immigrants through immigration reform. The Obama administration deported nearly 400,000 noncitizens in fiscal year 2010, more than any administration in U.S. history. I have characterized this as an “enforcement now, enforcement forever” policy, playing off of the “segregation now, segregation forever” slogan used by Alabama Governor George Wallace. More enforcement means disparate negative impacts on Latinos – more deportations, more deaths, more human trafficking, more racial profiling, etc. Proposals for comprehensive immigration reform have been on the table for years. Congress has failed to act on them again and again. Although President Obama again recently endorsed immigration reform, it seems unlikely that a reform measure will be passed by Congress anytime soon.In conclusion, color-blindness is an effective tool for those seeking to limit immigration from Mexico, as well as Latin America generally and Asia and Africa, to the United States. The result is that the political discourse over immigration often is cleansed of race when, in fact, immigration law and enforcement at their core are all about race. A color-blind approach (1) Provides plausible deniability to claims of racism, both for defenders of Arizona’s S.B. 1070 and opponents of comprehensive immigration reform; (2) While allowing racially disparate impacts to continue. Both comprehensive immigration reform and Arizona’s S.B. 1070 would have racial impacts as well, impacts generally buried in the debate.What might help move things forward? We could hope for the enactment of comprehensive immigration reform. Or, we might hope for a clear ruling from the Supreme Court ending the increasingly aggressive state and local efforts at regulating immigration and immigrants. The Supreme Court’s ruling last week in Chamber of Commerce v. Whiting does not fit the bill.In the long run, however, the nation would benefit from a meaningful discussion about the issues of race raised by U.S. immigration law and its enforcement. Immigration is about what we are – racially and otherwise – as a nation. But, to have such a dialogue, we must admit that race is at the bottom of immigration and discard our color-blind lenses. Until that happens, the debate will continue like two ships passing in the night. ................
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