Obama Right and Wrong About Arizona Law

Obama was right to criticize Arizona for passing the highly controversial Support Our Law Enforcement and Safe Neighborhood Act (SB 1070). He was right, too, in underscoring the federal government’s own irresponsibility in the intensifying immigration policy crisis. 

Obama lambasted the bill for threatening “to undermine basic notions of fairness,” adding that the law puts community trust in the police at risk while endangering civil liberties. "Our failure to act responsibly at the federal level will only open the door to irresponsibility by others,'' said Obama. Moreover, he warned that “if we continue to fail to act at a federal level, we will continue to see misguided efforts opening up around the country.''

The president, however, got it wrong about the full extent of the federal government’s responsibility for the Arizona law. The failure of Congress to act on a comprehensive immigration bill is certainly part of the reason why Arizona and other states are taking the initiative on immigration law.

But sins of omission are only part of the federal government’s responsibility. The president also needs to own up to signs of commission.

The president has failed to acknowledge that it has been the federal government, not Arizona, which is has been leading the way in fostering the involvement of local police in the enforcement of immigration law. Nor did President Obama mention that it has been the Department of Homeland Security, not Arizona, which has led the way in the criminalization of immigrants with such programs as Operation Streamline.

Two Dueling Agendas

The new anti-illegal immigrant law in Arizona highlights the two dueling strategies to address what is commonly regarded as a broken immigration system: comprehensive immigration reform (CIR) and “attrition through enforcement.”

The responsible strategy, according to the president, would a comprehensive immigration reform. The centerpiece of such a reform would be a pathway to citizenship for the existing illegal immigrant population. While proponents differ on the mix, a CIR package would likely include the following components in addition to legalization: increased border security measures, biometric identification or some system of worker verification, tough immigration enforcement, and a new guestworker program.

Since 2005 the proposed CIR bills have become increasingly responsive to arguments that border security and tough immigration enforcement must be in place before any pro-immigration measures, such as legalization and temporary worker programs, are considered. In addition, the proposed pathway to citizenship has also become increasingly strewn with conditions that would reduce the number of unauthorized immigrants who would be deemed eligible.

Even as CIR proposals have increasingly incorporated measures aimed to appeal to the political right and to those deeply concerned about the growth of the immigrant population, the consensus for reform has narrowed – much to the consternation of CIR proponents who had hoped that the adoption of an “enforcement first” position would create the political space for Republicans and for moderate and conservative Democrats to support CIR.

Among liberals and CIR advocates, the Arizona law is regarded as yet another reason why the federal government needs to act quickly to pass immigration reform. But the passing of the harsh law also highlighted the seemingly unstoppable march of the “attrition through enforcement” agenda.

With the prospects for CIR fading – even as the new “tough but fair” version of CIR is loaded with border security, immigration enforcement, and “get right with the law” provisional legalization measures – the “attrition through enforcement” approach to the country’s immigration policy crisis has become the prevailing response.

The federal government has not explicitly endorsed this response, but its actions are closely attuned with this restrictionist agenda.

Even as the White House and DHS continued to insist that only a CIR strategy will fix the broken immigration system, it has systematically moved to make it increasingly difficult for unauthorized immigrants (illegal border crossers and those overstaying their visas) and for legal immigrants who have violated criminal laws (mostly drug use) to live and work in the country. At the same time, DHS has steadily strengthened border control through increased checkpoints, increased agents, and increased border-control infrastructure.

Without immigration reform, this federal response is effectively attrition through enforcement -- albeit not as much enforcement and attrition as the restrictionist forces demand. And this is where the Arizona law comes in – with new measures to see that federal law is enforced and with new measures to criminalize immigrants.

The Arizona law is the latest manifestation of the “attrition through enforcement” strategy advocated by immigration restrictionists and allied conservatives. The introduction to the Support Local Law Enforcement Act clearly identifies the bill with this strategy:

“The legislature finds that there is compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona. The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.”

Like most nonviolent, nonvigilante strategies to address what is regarded as “mass immigration,” the latest legislative initiative in Arizona did not emerge independently but can be readily traced to the research, analysis, and policy advocacy of the restrictionist policy institutes in Washington, DC. These are the Federation for American Immigration Reform (FAIR), NumbersUSA, and Center for Immigration Studies (CIS).

Although all three institutes have been leading voices of the “attrition through enforcement” response to illegal immigration, the restrictionist think-tank CIS can be credited as being the first to articulate the logic and dimensions of this strategy. In April 2006 CIS published a policy backgrounder titled "Attrition through Enforcement: A Cost-Effective Strategy to Shrink the Illegal Population."

CIS analyst Jessica Vaughn outlined a six-part plan to systematically decrease the number of illegal immigrants residing in the country. While supporting the Secure Border Initiative – launched by DHS Secretary Michael Chertoff in 2005 and continuing with Secretary Janet Napolitano’s commitment to “border security” – Vaughn argued that even with tightened border security the country would still be burdened with an “illegal alien” population of 11.5 million or more.

Given that mass deportation would be both politically infeasible and immensely expensive, Vaughn explained that a much less-costly and more politically feasible strategy would be to escalate immigration enforcement by federal and local agencies. Two points in her six-point plan referred to local law enforcement measures that would make living and working in participating communities increasingly unbearable to unauthorized immigrants.

As part of this “attrition through enforcement” plan, she recommended:

·      *  “Increasing apprehensions and detention of illegal immigrants through partnerships between federal immigration and state and local law enforcement agencies.”

·        *“Passing state and local laws to discourage the settlement of illegal aliens and to make it more difficult for illegal aliens to conceal their status.”

Other elements of the strategy, as outlined in the CIS report, include mandatory employer verification, cracking down on the use of false identity documents, reducing visa overstays, and doubling the number of deportations through immigration raids and other federal enforcement measures. To a large extent, DHS is pursuing these four recommended initiatives as part of a dual strategy to demonstrate that it is committed to enforcing immigration law and to lay the political foundation for immigration reform.

Law Enforcement Partnerships

The Obama administration has also proved an ardent advocate of increased federal-local cooperation in immigration enforcement. Among other things, it has strongly supported collaborative programs initiated by the Bush administration such as Operation Community Shield, Criminal Alien Program, Fugitive Operation Teams, Operation Stonegarden, Border Enforcement Security Taskforces (BEST), and the 287(g) program – all of which involve local police and sheriff deputies in the enforcement of immigration law.

In addition, the Obama administration has consolidated and promoted the Secure Communities program, which was developed under DHS Secretary Chertoff as a pilot project to encourage and facilitate the checking of the immigration status of all those arrested by local law enforcement. Secure Communities is advancing rapidly under Secretary Napolitano, who has prioritized the detention and removal of all those DHS and the Justice Department identity as “criminal aliens.”

Immigration and Customs Enforcement (ICE), the DHS agency responsible for immigration investigations and interior enforcement, has a special program to promote what its calls “law enforcement partnerships.” ICE Access (Agreements of Cooperation in Communities to Enhance Safety and Security) “provides local law enforcement agencies an opportunity to team up with ICE to combat specific challenges in their communities.”

Established in 2007, ICE Access underscores the increasing outreach of DHS to local law enforcement officials in immigration and other homeland security matters. The program supports “a multi-agency/multi/authority approach that encompasses federal, state, and local resources, skills, and expertise.”

According to ICE ACCESS:

 “State and local law enforcement play a critical role in protecting our homeland because they are often the first responders on the scene when there is an incident or attack against the United States. During the course of daily duties, they will often encounter foreign-born criminals and immigration violators who pose a threat to national security or public safety.”

The Arizona law highlights a deepening conundrum for the federal government. By no means is DHS opposed on principle to having local law enforcement join in immigration enforcement. But it does insist that such cooperation be on the terms it sets. Having opened the door to federal-local cooperation, DHS is finding it hard to control the eagerness of localities to join in the immigrant crackdown.

DHS is also finding it hard to make a coherent, persuasive argument against those who contend, as Arizona Republicans do, that local law enforcement should allowed and indeed should be supported in their commitment to arrest all lawbreakers, including unauthorized immigrants.

The CIS report projected a 51% drop in five years in the number of unauthorized immigrants if, along with increased border security through the Secure Border Initiative, the attrition strategy were fully adopted. Increased enforcement certainly has resulted in a drop in the size of immigrant community living illegally in the country.

According to DHS, the estimated number of unauthorized immigrants decreased by 800,000 in 2008 to 10.8 million in January 2009. Interior immigration enforcement, increased deportations, and the recessionary economy all played a part in this decrease or “attrition”, as CIS and Arizona legislators would say.

Arizona-Style Attrition

With its Support Local Law Enforcement Act, Arizona not only adopted the “attrition through enforcement’ framework of the restrictionist institutes. It also adapted parts of the federal playbook for immigration enforcement: identifying new ways to increase what DHS calls “law enforcement partnerships” and extending the federal government’s own focus on the expanding category of “criminal aliens.”

Rather than waiting for DHS to reach out and expand its own federal-local collaborative programs, Arizona politicians have asserted the state’s right to enforce existing federal immigration laws.  In the view of the supporters of the new law, the main problem they are attempting to address is not some inadequacy in federal immigration law. Rather it’s the failure of the federal agencies to adequately enforce the law.

Under SB 1070 suspects are required to produce proof of legal residency if police determine there is a reasonable suspicion that they are in the country illegally. The Support Local Law Enforcement Act breaks new legislative ground by defining the presence of an unauthorized immigrant in the state as “trespassing,” making it a state crime to be an illegal immigrant in Arizona.

SB creates a state charge of "willful failure to complete or carry an alien registration document." Defenders of the law note that this state charge doesn’t trump federal law but is an adjunct to the Alien Registration Act of 1940, which requires that “every alien, eighteen years of age or older, shall at all times carry with him and have in his personal possession any certificate of alien registration….”

The new law no only target illegal immigrants themselves, but it is also includes provisions aimed to target those who support illegal immigrants by hiring them for day labor or who knowingly transport them. What is more, the act prohibits state, city, or county officials from limiting or restricting "the enforcement of federal immigration laws to less than the full extent permitted by federal law.”

Prepared with the assistance of the Immigration Reform Law Institute, SB 1070 is peppered with language designed to protect the law against legal challenges. The law, for example, mandates that police must have a “reasonable suspicion” that a suspect is an unauthorized immigrant and that police can’t independently determine the immigration status of a suspect but must appeal to federal authorities to make such a determination.  The law also states that a person’s “race, color, or national origin” can’t be the sole reason for questioning about immigration status.

As Dan Stein, president of the restrictionist institute FAIR, notes: 

“SB 1070 is a good bill. I should know. We and our legal affiliate, the Immigration Reform Law Institute, had a hand in developing the language based on years of expertise and experience to ensure it would survive court challenge. The law ‘takes the handcuffs’ off local police to work with federal authorities in enforcing U.S. immigration law. This law is both constitutional and effective.”

The legal challenges to SB 1070 are already lining up. Most will contend that the law will foster a climate of enforcement that will lead to a pattern of violations of the U.S. constitution’s equal protection clause and the Fourth Amendment’s protection against unwarranted searches and seizures.  

ACLU, MALDEF, and the National Immigration Law Center have announced that they plan to challenge the law, contending that it encourages racial profiling, endangers public safety, and betrays American values. The Justice Department is also considering blocking the implementation of the law, which is scheduled to take effect in August, on the grounds that it violates the supremacy clause of the constitution and the doctrine of preemption. Basically, the federal concern is that the Arizona law illegally intrudes into the enforcement of immigration law, which is defined as primarily a federal responsibility.

Challenge to Comprehensive Immigration Reform

It’s likely that SB 1070 will be judged, in whole or in part, as unconstitutional and will never be fully implemented. Even so the Arizona law marks another step forward in the consolidation of the attrition through enforcement strategy, just as its Legal Workers Act of 2008, which the courts have upheld, signaled the deepening dimensions of immigration law enforcement.

The only possible redeeming feature of SB 1070 is to raise the level of alarm about the increasingly ugly manifestations of the immigrant crackdown. But criticism of Arizona should not obscure the reality that, with or without SB 1070, attrition through enforcement is the law of the land.

Tom Barry directs the TransBorder Project at the Center for International Policy in Washington, DC. Barry blogs at http://borderlinesblog.blogspot.com/