Abstract
The enactment of Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (SB 1070) on April 23, 2010, and its amendment 7 days later (HB 2162), accentuated the political debate within Arizona and beyond on the question of migration and migrants, particularly from Mexico.
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Notes
- 1.
This essay draws on some of the thinking that was presented in a one-page column that discusses the concept of attrition through enforcement; see Plascencia 2010.
- 2.
Frisancho v. Governor Brewer (4-27-2010); Salgado v. Governor Brewer (4-29-2010); National Coalition of Latino Clergy and Christian Leaders v. State of Arizona, Governor Brewer (4-29-2010); Escobar v. Governor Brewer (4-29-2010); Friendly House et al./ACLU/NILC/MALDEF v. Whiting et al. (5-17-2010); U.S. Department of Justice v. State of Arizona, Governor Brewer (7-06-2010); and LULAC et al./Center for Human Rights and Constitutional Law v. State of Arizona, Governor Brewer (7-09-2010). A key contention raised by all the lawsuits is the position that the historical preemptive powers of Article 1, Sect. 8, Clause 3, the “Commerce” clause, in the U.S. Constitution, as defined by multiple Supreme Court rulings, grants the federal government the power to regulate migration. Thus, under this logic, the State of Arizona does not have the power to mandate the verification of migration status of persons deemed not to have authorization to be present. The one unchallenged exception being those law enforcement entities that are certified under the 287(g) provision of the Immigration and Nationality Act, as authorized by the 1996 Illegal Immigration and Immigrant Responsibility Act (IIRIRA) enacted by President Clinton.
- 3.
United States v. State of Arizona et al . (2011).
- 4.
The amendments made by HB 2162 subsumed the text of SB 1070, thus technically the debate is about HB 2162, and not SB 1070 since it was replaced by the former. However, in order to avoid the awkward notation of SB 1070/HB 2162, the essay uses “SB 1070” to simplify the reading.
- 5.
On the question of “racial profiling” and SB1070/HB2162, much of the debate has focused on whether the enacted measure will lead to “racial profiling.” Those in favor of the law take the position that it will not lead to racial profiling because racial profiling is already against the law, and the amendments in HB2162 will prevent it. Those opposing the law argue that the law will lead to racial profiling. What is overlooked by both sides is that there is recent, documented evidence that “racial profiling” has been taking place in Arizona and likely continues. See Veronica Arnold et al. v. Arizona Department of Public Safety, et al. (2006), a lawsuit filed in 2001; and the three mandated reports by the University of Cincinnati Policing Institute, (2007, 2008, and 2009). The data make it quite clear that racial/ethnic “minorities” are treated differently if stopped.
- 6.
The one notable exception is the chapter by the political scientist Roxanne Doty, in her recent book (2009). Professor Doty cogently argues that attrition through enforcement strategy can be interpreted, following the work of Giorgio Agamben, as a form of “exception,” a “politics of exceptionalism.” This essay offers a different interpretation.
- 7.
For a fuller discussion of the term “informally authorized” migrant, see Plascencia (2009). The proposed term is based on a critique of the commonly deployed labels of “illegal” or “undocumented” migrant; while not without limitations, it aims to overcome the common limitations of the aforementioned labels.
- 8.
Among the key provisions of HB 1804 were measures to restrict public resources, the issuance of driver’s licenses, required law enforcement official to detain and coordinate with ICE, criminalized harboring, and required employers to use E-Verify. The trajectory of HB 1804 followed a similar path to that of SB 1070: the governor enacted it, lawsuits were filed against it, a Federal District judge issued an injunction against key parts, it was appealed to the Denver circuit, and the circuit court returned it to the District judge.
- 9.
California’s 1994 Proposition 187, approved by voters, has been widely examined in academic and law journals, chapters in migration policy books, including a book devoted to its analysis (Ono and Sloop 2002). The courts overturned most of the provisions; one provision that was not overturned was the item providing for enhanced criminal penalties related to fraudulent production and use of identification documents.
- 10.
Leo Chávez labels elements in the debate as constituting part of the national “Latino threat narrative” (2008).
- 11.
A recent review of ICE Secure Communities apprehension data by the journalist Daniel González showed that 66 % of those apprehended and removed had committed low-level crimes, or had no criminal record (González 2011).
- 12.
The result of these practices has been that migrants who are otherwise ‘law-abiding’ persons are transformed into “criminals” as a result of minor infractions such as operating a car with a non-functioning tail light; and so it is the infraction that results in a ‘probable cause’ to stop the vehicle, and then leads to the inquiry regarding migration status. If the person is deemed to be subject to removal, the local law enforcement entity will retain the person in custody, and so the individual is transformed into a “criminal.” If an ICE agent takes custody of the person and offers the option of “voluntary departure” and the individual accepts rather than requesting a removal hearing, then ICE can take credit for having removed a “criminal.” Such a removal is considered that same as if ICE had taken custody of a county prisoner convicted of a felony and removed that person from U.S. territory.
- 13.
An informative discussion of restrictions in one city (San Francisco) against Chinese, such as the queue, “cubic air” requirements in room occupancy, operation of laundries, and others can be found in Courtney (1956). For a sustained discussion of cases regarding Chinese laundries, see Bernstein (1999).
- 14.
In the case of Arizona, the following entities have a 287(g) agreement with ICE: Arizona Department of Corrections, Arizona Department of Public Safety, City of Mesa Police Department, City of Phoenix Police Department, Florence Police Department, Maricopa County Sheriff’s Office, Pima County Sheriff’s Office, Pinal County Sheriff’s Office, and Yavapai County Sheriff’s Office (See ICE 2011). It also should be noted that the absence of a formal agreement with ICE does not mean that local police do not communicate or coordinate activities with ICE.
- 15.
It should be noted that the label restrictionist, as used here, should not be interpreted as indexing a homogeneous or monolithic set of individuals or organizations within states, but rather a general orientation toward migration and migrants. The common element among individuals and organizations labeled “restrictionist” is a general position on the need to reduce migration to the United States, particularly from Asian and Latin American nations, and the support of arguments that allege a net negative impact of migrants on the social fabric of the nation and its economic wellbeing. On the other hand, “pro-migrant” individuals and organizations are also conceptualized as representing diverse perspectives; such entities tend to support arguments that allege a net-positive gain to the nation.
- 16.
- 17.
The notion of a “presumed monocultural nation” refers to the common perspective that the United States has since its founding had a single culture, and single language. While English is the de facto national language, this is different from assuming that no other languages or cultures have existed in the territory that now comprises the United States of America. The multiple Native American communities and languages in the continental states, Alaska, and Hawai’i, for example, that existed prior to 1776 and continue to exist to the present, suggest that the United States has always been a multicultural nation. It is a diversity that has historically proved valuable. Choctaw speakers in World War I, and later Apache, Comanche, Meskwaki, Navajo, and other Native American communities, as well as Basque, played a major role in the outcomes of World War I and II.
- 18.
Meeks (2007) and other historians have noted that the year 1880 marks an important transition for Arizona’s economy and social relations. The observation is that with the accelerated economic development that took place in that year, the immigration of European-descent individual also increased substantially, and so the combined effect was to make racial/ethnic boundaries more fixed. Prior to 1880, Spanish/Mexican elite had significant control over political and economic resources, and so the smaller European descent community maintained generally good relations with both the Mexican and Native American communities in the state; including intermarriage.
- 19.
“White native,” “white,” “American citizen,” and “old stock” were common labels used in the late 1800s and early 1900s to refer principally to individuals with Cornish, English, Irish, and German origins. Other persons of European descent such as Italians, Spaniards, and those from Eastern Europe were not considered full members of the broader “white” community. This racialized scheme positioned Mexicans below these two groups, and Native Americans below Mexicans (Meeks 2007).
- 20.
Some of the relevant sources that examine forms of exclusion based on the racialization of individuals in Arizona include the following: Dimas (1991), Dean and Reynolds (2006), Leonard (1992), Lowe (1976), Luckingham (1994), Meeks (2007), Whitaker (2005). The classic book by the historian Higham (1963[1981]), Strangers in the Land: Patterns of American Nativism 1860–1925, provides a detailed description of federal, state, and local policies enacted against “aliens” in U.S. history.
- 21.
The 1885 Contract Labor prohibited all recruitment of foreign workers for jobs in the United States, and imposed a hefty fine on employers of $1,000 for each offense. Southwest agricultural employers, including some in Arizona, ignored the law, and boundary enforcement officials made limited effort to enforce it. Congress amended the 1885 Act several times, though it remained in effect until repealed by the 1952 McCarran-Walter Act (66 Stat. 163). The best discussion of the 1885 Act is found in Orth (1907).
- 22.
The Ninth Proviso contract labor program can be considered the first “bracero program;” although it was predated by smaller U.S.-Mexico arrangements, and followed by the much larger programs associated with World War II that operated between 1942 and 1964. A forthcoming essay examines the historiography of the WWII program.
- 23.
The 1920 Hearings by the Committee on Immigration and Naturalization in the House of Representatives (U.S. House of Representatives 1920) are a noteworthy source for deciphering the views of major Arizona leaders such as then Congressman Carl Hayden on the important need met by Mexican migrants in the economic growth and wellbeing of Arizona.
- 24.
- 25.
Table 7.1 does not include the bills proposed but not enacted. Former Governor Janet Napolitano (2003–2009) vetoed some of the measures proposed. Her appointment to the post of Secretary of the Department of Homeland Security (DHS) by President Obama, allowed Governor Janet K. Brewer to assume the position of Governor.
- 26.
The Southern Poverty Law Center (SPLC) has developed an ongoing set of reports on John Tanton and the organizations and activities he has initiated and supported since the 1980s (see http://www.splcenter.org. Their initial report, “Puppeteer,” described the effective political strategy that John Tanton, M.D. formulated (SPLC 2002) and the links to the Pioneer Fund, an organization labeled by SPLC as a “white supremacist” funding entity. Moreover, although IRLI does not note its connection to other organizations in the “network,” FAIR has indicated that IRLI is “FAIR’s legal affiliate” (FAIR nd). The SPLC has classified FAIR as one of the 1,000 “hate” groups in the continental United State for 2010.
- 27.
Kobach’s article cites Vaughan’s policy brief, but not Krikorian’s. A somewhat odd fact given that Krikorian published the earlier brief which appears to be the first use of the notion, and Kobach invokes the concept of “self-deportation,” which Krikorian used in the 2005 policy brief.
- 28.
- 29.
The concept of prevention through deterrence masked that the policies and actions that were developed could and did result in the deaths of an estimated 200 migrants per year.
- 30.
The OLC 2002 Memo is available at http://www.aclu.org/immigrants-rights/olc-memo-state-and-local-law-enforcement-immigration-laws-1; and Attorney General Ashcroft’s prepared remarks can be found at http://parstimes.com/news/archive/2002/Ashcroft.html.
- 31.
The legal arguments pursued by the Department of Justice to keep the memo secret were: first, that the memo was an internal pre-decision document and did not constitute a policy adopted by the Department or other federal agencies; second, in the appeal they added the argument that the memo should remain secret because it represented a document related to the attorney-client privilege. The appellate court rejected both arguments, though it allowed the Department to redact some information in the memo.
- 32.
See National Council of La Raza, et al. v. Department of Justice, No. 03 Civ. 2559 (LAK), U.S. District Court, S.D. New York (2004), and National Council of La Raza, et al. v. Department of Justice, 411 F3d. 350 (2005).
- 33.
Among scholars specializing on the Mexico-United States boundary area, it has long been observed that the national discourse on United States boundaries has coded the Mexico-United States political boundary as “the border.” From journalist, academics, policy makers, to human rights and pro-migrant groups along the 2,000-mile southern boundary, many among these have developed a taken-for-granted speech act regarding the southern boundary; that boundary has been encapsulated as “the border.” The hegemonic position of the linguistic term disavows the social reality about the multiple U.S. political boundaries—e.g., the Canada–United States 4,000-mile boundary, the Alaska–Canada boundary, the coastal U.S. borders, and the coastal boundaries of island possessions such as Hawai’i and Puerto Rico, etc.
- 34.
The linking of a migration enforcement action with jobs for U.S. citizens is not new. The Hoover Administration’s implementation of mass deportations in the late 1920s and early 1930s articulated the same argument (Balderrama and Rodríguez 2006). The argument was again repeated during the implementation of Operation Jobs in 1982 (Plascencia 2011). In both instances, though for different reasons, the promise of jobs for U.S. citizens remained a political assertion with a positive popular appeal.
- 35.
It should be noted that the AILA (American Immigration Lawyers Association) document has as its focus the proposed rules for the NSEERS program, however, the rules duplicate the inherent arrest authority argument, thus its comments are relevant.
- 36.
In the cases of Lozano v. Hazleton, PA (local regulation of private rental housing and other provisions); Gray v. Valley Park, MO (a local employer sanctions case); Villas v. Farmers Branch, TX (local regulation of private rental housing); Day v. Bond (in-state tuition for “unauthorized” migrant students); and Martínez v. University of California Board of Regents (in-state tuition). However, in the minor case of Freemont v. Kotas, a case involving the opposition of the City of Freemont (a city with a population of about 25,000) to a proposed anti-migrant voter initiative, a state court ruled that voters could proceed with their initiative. In the case against SB1070, a federal court ruled against the principal provision; this could also be counted as an additional preliminary loss for Mr. Kobach.
- 37.
It is notable that scholars and others assuming a restrictionist position, particularly a strong anti “amnesty” position, almost never make reference to the federal “amnesty” granted to Cuban nationals, to migrants that qualify under 8 U.S.C. §1440, or to the “Registry” provision that dates back to 1929 (and revised several times since then) and allows the granting of Permanent Residency to migrants who may have entered without authorization but have been successful at remaining undetected and being law-abiding residents. Mr. Kobach has expressed his position on the DREAM Act as being an action that will provide an unwanted amnesty (a “sleeper amnesty”) (Kobach 2007).
- 38.
- 39.
HB2162 reads as follows: “B. For any lawful stop, detention or arrest made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the united states.” The bolded text represent the changes inserted by HB2162; and the plain text is the original language in SB1070.
- 40.
I should note that the reaction has not been homogeneous. Corporations and the military are two segments that have responded by reconfiguring their approach to the demographic transition. Since the 1990s, the Department of Defense has been clear that the military of the future, and the defense of the nation, will depend on Latino participation. Kobach’s essay for the Heritage Foundation refers to the DREAM Act as “rewarding lawbreaking” and a “nightmare” (2006). Yet his discussion ignores that the Department of Defense is one of the sustaining supporters of the DREAM Act; for DOD it is not a nightmare, it is a reality it embraces.
- 41.
See http://www.splcenter.org/get-informed/intelligence-report/browse-all-issues/2011/spring, as well as SPLC (2002).
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Plascencia, L.F. (2013). Attrition Through Enforcement and the Elimination of a “Dangerous Class”. In: Magaña, L., Lee, E. (eds) Latino Politics and Arizona’s Immigration Law SB 1070. Immigrants and Minorities, Politics and Policy. Springer, New York, NY. https://doi.org/10.1007/978-1-4614-0296-1_7
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