October 04, 2010
In a Harvard Law School discussion on immigration law, three expert panelists offered perspectives from the trenches on Arizona SB 1070, the controversial immigration law enacted earlier this year.
The Arizona Act makes it a state misdemeanor offense for an alien to be in Arizona without carrying required federal documents, bars state or local officials from restricting enforcement of federal immigration laws, and cracks down on people who shelter, hire or transport illegal aliens. Critics of the legislation say it encourages racial profiling, while supporters say the law forbids the use of race as the sole basis for investigating immigration status.
The U.S. Department of Justice brought suit against Arizona’s law in United States of America v. Arizona, and U.S. District Court Judge Susan Bolton granted a preliminary injunction that has blocked key provisions of the law from being implemented. Arizona Governor Jan Brewer appealed the District Court’s ruling to the Ninth Circuit, which is scheduled to hear arguments in the case on November 1.
John Willshire Carrera, managing attorney of the Harvard Immigration and Refugee Clinic, moderated the conversation between panelists Monica Ramirez, counsel to the Assistant Attorney General for Civil Rights, Eva Millona, executive director of the MIRA (Massachusetts Immigration and Refugee Advocacy) Coalition, and Clare Huntington, associate professor of law at the University of Colorado.
Carrera, who is also lead attorney with the Immigration Unit of Greater Boston Legal Services, said the panel’s purpose was to explore the “Arizona law, what it says, what the issues are with it, and what the litigation is around it…as well as how it’s affecting other parts of the country and driving the struggles around immigration reform.”
Describing immigration as a longstanding political issue that is not simply the federal government’s responsibility, Carrera emphasized the local context: The population of the city of Boston is twenty-seven percent foreign-born.
Ramirez, a former ACLU staff attorney who works on a broad range of immigration issues and helped lead the DOJ’s review of Arizona’s law, said it was remarkable how much has happened since last year.
During the panel, she described why the Obama Administration is challenging Arizona’s new provisions: principally, she explained, because they pre-empt federal immigration law, interfere with the government’s ability to enforce immigration policy, and burden unduly lawful and undocumented immigrants.
Four particular measures are in constitutional dispute: requiring aliens to register with the government and carry registration forms (the so-called carry-your-papers provision); criminalizing solicitation or employment of undocumented workers; forcing state and local police to determine immigration status when pulling over vehicles or when there is reasonable suspicion of unlawfulness; and enabling these authorities to arrest undocumented citizens without a warrant.
The Arizona law diverts federal resources away from addressing high-priority targets and terrorism, and interferes with federal immigration priorities, Ramirez said.
Because this is a pre-enforcement challenge, she said the administration is not arguing that the law is unconstitutional on racial profiling grounds. Rather, Ramirez and her colleagues are arguing that the Constitution does not permit a patchwork scheme of state immigration enforcement and that Arizona overstepped its legal bounds.
Ramirez said that in her casework in Arizona, she has heard from Hispanic youth who say they feel like “second-class or alien citizens” as a result of the law’s passage. Ramirez said she has met with educators who don't know how to respond when students’ parents come in saying that they’re undocumented.
While she said the administration is optimistic about the Ninth Circuit’s review, Ramirez said that without bipartisan support, Congress will not enact comprehensive immigration reform.
Millona, a local Massachusetts-based immigration legal advocate, said that after the Arizona law’s passage, legislators on Beacon Hill seriously considered legislation, including a statewide 1-800-number to report illegal immigrants, that would have “brought the Arizona flavor” to the Bay State.
“It’s an election season…and immigration has been used as political theatre. Many Republicans who were once very vocal on comprehensive reform are not coming back to negotiate. They’re too worried about getting elected.”
Carrera asked Millona, who leads MIRA’s grassroots political advocacy, to what extent race was a factor in the enactment of the Arizona law and similarly designed immigration measures.
“This is not really a race issue…but one across the population,” Millona replied.
Huntington, who teaches law at the University of Colorado, said that immigration law, while “difficult and opaque,” is “fascinating on so many levels.” She agreed with Ramirez and Millona that the Arizona law is unconstitutional and strips rights from Arizonians, but said that such state laws “can cut both ways and be positive or negative.”
Huntington added that the Constitution is fundamentally silent on the regulation of immigration and that historically states and the federal government have played “a hybrid role.” “There was really no federal immigration legislation until the last quarter of the 19th century,” she said.
While statutory and structural pre-emption give the federal government precedence in a variety of areas, pre-emption in immigration is not “supported by the text of the Constitution or historical practices,” she said.
The event was sponsored by several organizations, including the Bernard Koteen Office of Public Interest Advising, Harvard Immigration and Refugee Clinic, the Harvard Immigration Project, American Constitution Society, the Federalist Society, and La Alianza,
— Alexander Heffner