The Immigration Conundrum

May 1st, 2010

By Tom Carter

There’s a lot of political chattering and commentating in the media these days about illegal immigration (for example, here, here, and here).  The current high level of consternation was caused by a new law in Arizona, which basically is an attempt to step into the void created by the federal government’s long-term failure to enforce the nation’s southern border and deal with people now in the country illegally.

It’s not that no effort has been made by the federal government to deal with the issue.  The Immigration Reform and Control Act of 1986 was the most recent comprehensive effort to deal with the problem.  So why are we still wrestling with it?  Because then as now, we still aren’t controlling the border.  Beyond that, the provisions of the 1986 law weren’t adequately enforced, particularly in regard to employer sanctions.

The problem now is pretty much the same as it was 25 years ago, except worse in all respects.  Our failure to control the border at a time when foreign-sponsored terrorism is much higher than it’s ever been is a travesty.  The violent drug wars in Mexico are now spilling across the border into the U.S.  The number of illegal immigrants in the U.S. today was maybe six million 25 years ago; today it may be 12 million.  We didn’t know back then what the real number is, and we don’t know today.

Arizona’s new law isn’t the only state law that attempts to deal with illegal immigration, but it’s certainly the most stringent — draconian, some say.  The new law makes it a criminal offense to be an illegal immigrant in Arizona.  It requires, among other things, that police officers stop and question anyone they believe may be illegal, based only on “reasonable suspicion,” which isn’t clearly defined.  It also permits citizens to sue police departments who don’t seem to be enforcing the law sufficiently strictly.

Although a majority of the citizens of Arizona support the law, many don’t, including chiefs of police.  Two lawsuits have already been filed challenging the constitutionality of the law, and there will most certainly be more.  The basic issues are that the law expands and pre-empts federal law and constitutional prerogatives and that it will create due process and equal protection violations by selecting certain people for police attention without sufficient cause.  It’s difficult to see how the law can survive constitutional challenges.

This is a bad law.  It not only encourages racial profiling, it requires it.  It significantly reduces protections against arbitrarily being detained and questioned by police.  It’s a step toward requiring citizens to carry identity papers, something that’s never been done in America.  It discourages illegals from reporting crimes, cooperating with authorities in any way, seeking medical attention, responding to the census, and educating their children.

Some may say, “So what? They shouldn’t be here anyway.”  True enough, but do we really want American citizens who are Latino to be subjected to unreasonable police attention because of their appearance and language skills?  Do we want them to have to carry identity papers at all times to prove their citizenship, while citizens who don’t look Latino don’t have to do that?  Do we want illegals to be sick, possibly with infectious diseases, because they’re afraid to seek medical help?  The list of undesirable consequences of Arizona’s new law is long indeed, and it’s hard to find much in it that’s positive.

We must have a reasonable, comprehensive immigration law that goes beyond the 1986 law and is enforced.  It must include resources and a mandate that requires effective border control, employer sanctions with teeth, a rational path toward legalization for those already in the U.S., and workable procedures for detaining and deporting illegals who are criminals or who can’t otherwise be legalized.  Finally, it must include a guest worker program to permit temporary workers to be in the U.S. to the extent they are needed, and it must establish new, reasonable immigration quotas for those with needed skills who wish to come to the U.S. legally.

Frankly, I don’t have much hope that effective immigration reform will be passed or, if passed, properly enforced.  There are simply too many ideologues among politicians and the public today.  Because one side or the other disagrees with specific necessary provisions of any reform, the whole effort will be killed or so twisted out of shape that it won’t work.  That means the states, and the people, will be left to deal with the problem mostly on their own, as they are now.

As I said, Arizona’s new law is bad.  Other states will adopt similar laws, and they’ll be bad, too.  But until the federal government gets its act together and starts doing its job, states and their citizens, especially those on the southern border, won’t have much choice.  We should all keep this in mind when the ideologues of left and right begin ripping into each other over immigration reform.

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13 Responses to “The Immigration Conundrum”

  1. Tom |

    I just read a report that Arizona has modified their illegal immigration law to make it clear that racial profiling is prohibited:

    The changes include one strengthening restrictions against using race or ethnicity as the basis for questioning by police and inserts those same restrictions in other parts of the law.

    Another change states that immigration-status questions would follow a law enforcement officer’s stopping, detaining or arresting a person while enforcing another law. The earlier law had referred to a “contact” with police.

    Another change specifies that possible violations of local civil ordinances can trigger questioning on immigration status.

    Sounds like it still leaves things pretty vague, and “reasonable suspicion” still isn’t well-defined. It probably puts police in an even worse position — under pressure to catch illegals, under pressure to make sure it doesn’t seem that their appearance has anything to do with it.

    Still a bad law, now maybe worse.

  2. larry ennis |

    Still a bad law but I believe better than no law?
    The politicians have given great amounts of lip service to this problem but not much else. Arizona finds itself under siege by a foreign power but with no Federal help to stop what is becoming an invasion.

  3. Tom |

    Well, it’s not that the people of Arizona and other states have no federal help. There are laws in effect and enforcement going on, but it’s seriously insufficient and inconsistent.

    Look at the situation on the border, for example. The Border Patrol is down there working hard in a difficult and sometimes dangerous job. However, they’re underfunded and lack needed resources. All we have to do is give them what they need, and the border can be brought under control.

    But when we get around to trying to enact comprehensive immigration reform, there are folks who would scuttle the effort because they don’t want the border controlled. There are also folks who would kill the effort because it would have to provide for a reasonable path to legal status for the millions of illegals already in the country, some of them here for many years.

    So, the bottom line is we may not get there, and state vigilantism may become the norm. That’s a sad reality.

  4. d |

    I hope all states pass the Arizona law. We need to do something. I am so tired of illegal rights,the operative word here is illegal. Why are their rights so much better than the legals. Oh poor pitiful them. We let them live here,give them the right to protest,to all our programs to help the poor,and even change everything,including our language to accomodate them. I do not feel sorry for them. It’s like letting someone move into your house,eat your food,take your money,change the language spoken in youe house,and you give them a retirement and benefits,if they can’t find work. Then,they can scream discrimination,if you don’t want them staying in your house,and if you don’t support them and let them do crimes,without asking if they are illegal. More power to you,Arizona,I am waiting for that law,here. The Gov. has to much political stake in coddling illegals from Mexico, to do anything real about this huge problem. Let us vote! 70% of Arizonans are for the law,show the illegals we mean business,maybe they will stop coming by the droves,they have been warned by their Gov. not to go to Arizona,about time. Time for Texas to have that power.

  5. larry |

    I agree with your thoughts completely.
    The idea that a law passed in 1986 should have cured this problem carries little force in 2010. Maybe enforcement at the time of passing could have worked but to call on it almost 25 years later is hopeless.
    The idea that 70% of the residents in Arizona are bad people because they support the new law is pure liberal bull fodder.

  6. d |

    Scarey,that Larry agrees with me. I am a democrat,but come on,the police can’t even question a speeding driver,if he doesn’t speak English,surely he is a citizen,to see if he is illegal? They let him go. This is absurd, and we need a voice in this horrible mess,if not, we will all have to learn spanish or move to Canada.Or maybe some country, that actually protects their borders,almost all other countries do.
    I think if we voted,things would change,before it is too late.I think Houston is about 66% illegal,already.

  7. Brianna |

    “It’s a step toward requiring citizens to carry identity papers, something that’s never been done in America.”

    Actually, non-citizens here legally are required to carry documentation proving their legal status at all times in all states, and have been so required since 1940. The Arizona law merely gives teeth to this provision. As for asking citizens for their papers, only legals are allowed to get driver licenses in AZ, so native Arizonans really don’t have to carry anything that they don’t already. In other words, if a cop pulls you over for a busted taillight and says, “license and registration, please,” you have just proved your legal status.

    “Two lawsuits have already been filed challenging the constitutionality of the law, and there will most certainly be more. ”

    I doubt they will win. AZ has a good record of proving the constitutionality of their earlier attempts to deal with immigration, and the AZ people were very careful to mirror existing federal law when passing their state provisions.

    “It requires, among other things, that police officers stop and question anyone they believe may be illegal, based only on “reasonable suspicion,” which isn’t clearly defined. ”

    This is a common misconception. In fact, the law allows cops to ask for documentation based on reasonable suspicion only in cases where they already suspect someone of breaking another law. i.e. a cop cannot pull you over on suspicion of being illegal, but if he pulls you over for speeding, and comes to suspect you’re illegal in the process, he can ask for your documentation, which as I’ve said, if you’re an immigrant here legally, you’re supposed to have that anyway.

    “This is a bad law. It not only encourages racial profiling, it requires it.”

    80% of illegals are hispanic. That percentage is doubtless higher in AZ. Racial profiling in AZ should essentially be used in the same way that airport security profiles people when seeking terrorists; certainly we should not be simply stoping brown people at random, but if you’ve got a brown person who displays other suspcious factors, such as he doesn’t speak English well and he can’t produce a driver’s license, that’s a different story.

    “The new law makes it a criminal offense to be an illegal immigrant in Arizona. ”

    If it weren’t an offense to be here legally, we wouldn’t call them illegals. Criminal or civil, not much difference. AZ is the kidnap capital of the country, and the city with the second highest kidnap rate in the world. The Feds were not acting, the state had to do SOMETHING.

    Though if you really feel bad about it, I suppose that instead of forcing them to leave the country, we can put them in the sanctuary cities that have been tying themselves into knots in order to express disdain for the new law without actually rolling out the welcome mat. Or maybe we should dump them in Obama’s backyard, see how irresponsible he thinks it is to enforce illegal immigration laws after he’s had to actually deal with some of the problems being caused by illegals in AZ.

    Finally, I find it highly ironic that the same people protesting the evil of a law that makes it a crime to be “breathing while undocumented” is so gung-ho about the federal health care law, which makes it a crime to be “breathing while uninsured.” I also find it ironic that Mexico, which has a horrible immigration policy, has the nerve to protest something that is eminently reasonable compared to their own provisions for illegals.

    Some good articles to read about this issue

    “Why Arizona Drew A Line” – Explains a lot of the misconceptions about the new law (in the NYT, of all places)

    “The Big Alienation” – discusses AZ along with some other issues, but worth reading

    “Illegal Immigrants Leaving AZ Over New Law” – see, it hasn’t even gone into effect yet, and it’s already working. Bet you coudln’t get CBS to see the irony though if you hit it over the head with a brick

    “How Mexico Treats Its Illegal Aliens”

  8. d |

    Ever heard of fake I.D.s? They are abundant for illegals,including drivers license and insurance cards.But,if they can’t speak English,the officers are supposed to let them go,can’t even ask if they are illegal,because they are brown and it would be racist. Ridiculous.

  9. Tom |

    Brianna, “reasonable suspicion” is a pretty low standard, and it doesn’t apply to just stopping cars. It can be applied to any case in which a person has contact with police. As originally written, that “reasonable suspicion” in regard to illegal immigrants was strongly oriented toward race/ethnicity. It couldn’t be interpreted any other way. The change to the law says that race/ethnicity can’t be used to substantiate “reasonable suspicion,” but that puts the police into an even more difficult position. They’ll be criticized for not aggressively enforcing the law, and they’ll be criticized for racial profiling it they do aggressively enforce it, given that the appearance of the person will always be an issue. Like I said, for that and other reasons, it’s a bad law.

    Actually, as I said, requiring citizens to carry identity papers has never been required in the U.S. Legal immigrants do have to carry green cards or other proof of their status. So here’s the situation under the AZ law: If you’re a person who appears to be Latino and you’re a U.S. citizen, in practical terms you’re going to be forced to carry identification to avoid being hassled by police who may decide they have “reasonable suspicion” that you’re illegal. If your English is less than perfect, they problem gets bigger.

    The “common misconception” here is that this is nothing new, but it certainly is. For example, if a police officer has a reasonable suspicion that someone is doing something illegal (driving a car or otherwise), he may question the person. If the suspicion was unfounded, the person walks away. Now, under the new AZ law, the person faces the additional risk of having his citizenship status challenged. If he’s a citizen, he likely won’t be able to prove his citizenship because he isn’t required to carry papers. So what happens then? The cop says, “Oh, well, OK, have a nice day.”? Or, more likely, the cop detains the American citizen until he can produce proof of his status. That’s wrong on many levels.

    As I indicated, I’m sympathetic to the problem faced by Arizonans and people in other border states. The real fault lies with the federal government, which has consistently failed to do its job. That doesn’t mean, however, that AZ and other states should enact laws that will infringe upon the rights of citizens in an effort to catch illegals, which isn’t their job in the first place.

  10. Brianna |

    Arizona didn’t invent the concept of “reasonable suspicion.” It’s been around for ages and is used in enforcing a variety of laws. Saying it’ll get abused in this case because the topic is politically sensitive is just silly. Besides, if you’re in contact with the police because you’re breaking the law, then they probably have the right to take a look at your driver’s license whether they suspect you of being an illegal or not. And if you’re in contact with the police for some other reason, then I would consider it reasonable to write in some caveats protecting illegals from getting punished for being illegals under those circumstances, much as police tend to work out deals with people who uncover evidence of great crimes while committing lesser crimes.

    As for sufficient documentation for citizens who are suspected of being illegal, the documentation is your driver’s license. In theory we shouldn’t have to carry around anything, and sometimes when I’m just taking a walk at night, I’ll leave my wallet at home just to be contrary. But let’s be realistic: how often do you walk out your door in the morning without your driver’s license? Even people who don’t drive have a state ID in case they want to go to a bar or in case a cashier asks for ID with a credit card purchase. Sure they can be forged, and they probably will be, but you’re quite right that picking anything else would be too intrusive, so I doubt AZ will try for anything more comprehensive than that.

  11. Brianna |

    Oh, and a fun caveat I think would be great to put in the law to prevent harassment: if you get called on by the cops under “reasonable suspicion” and taken to court, and the judge rules that the cop acted without sufficient reason, then the illegal should get instant citizenship as damages. That way illegals who get called under “reasonable suspicion” are still screwed, and illegals who think they have a serious harassment case would be tripping over themselves to prove that case in court. Cops would also be more cautious, since the penalty for a wrong guess would be making the illegal legal.

  12. Brianna |

    From the NYT article

    It is unfair to demand that aliens carry their documents with them. It is true that the Arizona law makes it a misdemeanor for an alien to fail to carry certain documents. “Now, suddenly, if you don’t have your papers … you’re going to be harassed,” the president said. “That’s not the right way to go.” But 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.

    “Reasonable suspicion” is a meaningless term that will permit police misconduct. Over the past four decades, federal courts have issued hundreds of opinions defining those two words. The Arizona law didn’t invent the concept: Precedents list the factors that can contribute to reasonable suspicion; when several are combined, the “totality of circumstances” that results may create reasonable suspicion that a crime has been committed.

    For example, the Arizona law is most likely to come into play after a traffic stop. A police officer pulls a minivan over for speeding. A dozen passengers are crammed in. None has identification. The highway is a known alien-smuggling corridor. The driver is acting evasively. Those factors combine to create reasonable suspicion that the occupants are not in the country legally.

    The law will allow police to engage in racial profiling. Actually, Section 2 provides that a law enforcement official “may not solely consider race, color or national origin” in making any stops or determining immigration status. In addition, all normal Fourth Amendment protections against profiling will continue to apply. In fact, the Arizona law actually reduces the likelihood of race-based harassment by compelling police officers to contact the federal government as soon as is practicable when they suspect a person is an illegal alien, as opposed to letting them make arrests on their own assessment.

    It is unfair to demand that people carry a driver’s license. Arizona’s law does not require anyone, alien or otherwise, to carry a driver’s license. Rather, it gives any alien with a license a free pass if his immigration status is in doubt. Because Arizona allows only lawful residents to obtain licenses, an officer must presume that someone who produces one is legally in the country.

    State governments aren’t allowed to get involved in immigration, which is a federal matter. While it is true that Washington holds primary authority in immigration, the Supreme Court since 1976 has recognized that states may enact laws to discourage illegal immigration without being pre-empted by federal law. As long as Congress hasn’t expressly forbidden the state law in question, the statute doesn’t conflict with federal law and Congress has not displaced all state laws from the field, it is permitted. That’s why Arizona’s 2007 law making it illegal to knowingly employ unauthorized aliens was sustained by the United States Court of Appeals for the Ninth Circuit.

  13. d |

    Az is just enforcing a law that should have been enforced a long time ago,Tom. Before this,police officers had no authority,and could not even question illegals. I assume, illegal white people will be questioned,too. I’m not protesting that,I always carry my d.l. even when I walk. They can even detain me,if it means illegals will get detained and returned. Maybe even discouraged from coming to this country illegally. Maybe even the people who abuse illegals, bringing them here under horrible conditions,will be detained and discouraged,too. This law is great and we need it in all states,until the Federal Gov. does their job,fat chance of that.

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