We have not discussed Arizona’s SB 1070 much on these pages. However, as the law appears to be bleeding into local issues, it is worth noting that it seems likely that US District Judge Susan Bolton’s order preventing enforcement of key provisions until the court rules on the law’s constitutionality is likely to stand. At least that is what several legal scholars are predicting and their reasoning seems sound.
On the one hand there is a danger in making the assumption that a court will throw out a law just because it violates the constitution. As UC Davis Law Professor Kevin Johnson points out in an Op-Ed in the Washington Post, co-written by a University of Arizona Law Professor, they cite a 1975 case which allows the Border Patrols the power to stop vehicles near the U.S.-Mexico border and question the occupants about their citizenship and immigration status. The high court ruled that the “likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.”
One the other hand, as yesterday’s Sacramento Bee article cites a May prediction by Dean Kevin Johnson, “A court,” he wrote, “will bar the law from being enforced” and it “will never go into effect.”
The Bee argues that the ruling by Judge Bolton will likely stand. In an editorial on Friday they argue, “The judge’s order was careful, not one-sided – blocking particular provisions, not the whole law. Arizona can enforce provisions that are consistent with federal law, but may not set its own immigration policies and change or violate federal laws.”
The order is a preliminary injunction against the imposition of the law. There are really two standards, first that the government is likely or substantially likely to prevail at trial and second, that the preservation of the status quo is less harmful than enforcing a law that is likely to be overturned.
As the New York Times explains, citing Judge Bolton, “Preserving the status quo through a preliminary injunction is less harmful than allowing state laws that are likely pre-empted by federal law to be enforced,” she said.
“There is a substantial likelihood that officers will wrongfully arrest legal resident aliens,” she wrote. “By enforcing this statute, Arizona would impose,” she said, citing a previous Supreme Court case, a “ ‘distinct, unusual and extraordinary’ burden on legal resident aliens that only the federal government has the authority to impose.”
“The judge’s decision was not her final word on the case. In granting the injunction, she simply indicated that the Justice Department was likely, but not certain, to prevail on those points at a later trial in federal court. She made no ruling on the six other suits that also challenged the law,” the Times continues.
The Court in this case finds that the United States is likely to succeed on the merits in showing that four specific provisions are preempted by federal law. First is the section that requires that “an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person.”
Second, the section that creates a crime for failure to apply for or carry proper alien registration papers. Third, creating a crime for an unauthorized alien to solicit, apply for, or perform work. And finally, authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States.”
Here is a key point. The law violates the Constitution, for instance, where it basically states that the Fourth Amendment does not apply to suspected immigrants without documentation. Arizona lacks the power to selectively abrogate the Bill of Rights even when it believes that the federal government has failed to sufficiently enforce existing laws.
The bottom line, as California learned with Proposition 187, is that the state is not the enforcer of immigration laws. The federal government has the primary jurisdiction and, regardless of suspected immigration status, people in this country have rights under our constitution.
The frustrations expressed in these laws are understandable. The solution is not going to come from draconian enforcement that will likely produce an unintended backlash from legal residents of Hispanic descent. Instead, the true solution is to acknowledge why people come to this country: primarily to work. Most of the problems that are associated with immigration would either disappear or be greatly reduced if the Congress would finally enact, for those who wish to come to this country to work, legislation that would enable them to do so..
That would wipe out the black market illegal immigration smuggling, the problems of border crimes, the problems of drugs coming over the borders with immigrants and their transporters, etc. That is what Arizona is trying to deal with and those are legitimate concerns – although the rhetoric has been blown up beyond all proportions.
The Arizona Governor is one of the chief perpetrators of this. For instance, “Our law enforcement agencies have found bodies in the desert either buried or just lying out there that have been beheaded,” said Governor Jan Brewer on local TV.
The Arizona Guardian checked with medical examiners and reported “officials with six county medical examiners offices in the state, including four from counties that border Mexico, say they have never heard of such attacks.”
“The Arizona Guardian contacted the coroners’ offices in Yuma, Pima, Pinal, Maricopa, Santa Cruz and Cochise counties. All of them said they’d never investigated an immigration-related crime in which someone’s head had been head cut off within their respective jurisdictions,” the paper reported.
Here’s one: how about Phoenix becoming the world’s No.2 kidnapping capital? John McCain, R-Ariz., said on NBC’s Meet the Press on June 27. “By the way, on that issue, why is it that Phoenix, Arizona, is the number two kidnapping capital of the world? Does that mean our border’s safe? Of course not.”
“Phoenix, Arizona, I’m told, is now the No. 2 kidnapping capital in the world, right behind Mexico City,” he said. “That’s unacceptable in America. We understand. We in Texas understand the frustrations people feel in Arizona.”
According to the Washington Post’s Dana Milbank, “McCain’s claim [is traced] to a dubious report by ABC News in February 2009. Law-enforcement agencies generally don’t track foreign kidnapping statistics, but experts said rates are far higher in various Central American, African and Asian countries. Reports of kidnapping in Phoenix, meanwhile, are declining.”
We need reasoned discourse on this topic, not more hysteria. The facts are that crime in most Arizona border towns has been essentially flat for the past decade. One example is in Nogales, Arizona, in 2000 there were 23 rapes, robberies, and murders. Last year, despite heavy growth over the decade, there were just 19 of such crimes.
FBI statistics show violent crime rates in all of the border states are lower than they were a decade ago, however Senator John McCain, once one of the reasoned voices on the issue, said that the violence is “the worst I have ever seen.”
We concur with the Sac Bee’s editorial, “The impetus behind the Arizona law and justified criticisms of it both point to one thing – our broken immigration system needs fixing. President Barack Obama and Congress need to step up to the task.”
But the Arizona law is not the way to accomplish this.
—David M. Greenwald reporting
UC District Judge Susan Bolton’s
That’s a mispelling that caught me for several seconds. I’m assuming US District Judge, instead.
Is it possible that this is election year posturing? Much like “defense of marriage” (outlawing same sex marriage in several states) was several years ago? In a similar way, it’s a safe visceral issue that the Republicans can use to energize their base.
It’s a dangerous game. In 2004, The GOP won in California and elsewhere doing that but they activated a Latino base, they shifted their party allegiance, and turned California with few exceptions into a reliably blue state.
Most polls have it around 65% of America in favor of the Arizona Law. Hard to see how this is going to be good for Democrats come November.
Public opinion is a funny thing. I’ll give you two examples.
Gun control. For years the Democrats looked at gun control as an issue to support. They looked at the polls and saw solid support for tougher restrictions. But it was misleading. The majority of people did support control, but they did not vote based on that issue. The people who did vote based on that issue were overwhelmingly against gun control and were people who used to vote for Democrats, so by supporting control Democrats actually hurt themselves.
187. In 1994, Prop 187 passed overwhelmingly. In fact, those politicians who supported 187 did quite well. But what went undetected until 1996 was the fact that 187 actually changed the voting dynamics. And so in California, you used to have Latino vote almost split prior to 1994, after 1996 Latino vote has been almost as reliably Democratic as the Black vote. Moreover, the number of Latinos who vote has gone way up. The result is California went from a state that usually elected Republicans, to a state that except for Schwarzenegger has elected democrats to every major office every year since 1994.
So you may be correct looking at the polls that Democrats will be hurt in November, but guess what the fastest growing group is in this country including in a number of the fastest growing states? Latino. Long term this is going to hurt the Republicans.
If I’m not mistaken, Arizona passed the law in the wake of an incident in which a farmer was killed on his farm by drug dealers. Very soon after the law was passed, a deputy was either wounded or killed by drug dealers coming across the border into Arizona. The state of Arizona is known to contain a narco highway between it and Mexico.
Also, is not this decision handed down by the 9th Circuit in the federal court system, the most overturned Circuit in federal court system in the country? Correct me if I have this wrong.
Additionally, look to other states to come up with their own laws similar to Arizona, but corrected in light of Judge Bolton’s criticisms of Arizona law. I don’t think the immigration issue is going away, despite the Obama administration’s efforts to bury it with this lawsuit…
I think the immigration issue can go away. First, you mentioned that Arizona is a “narco” highway, I don’t know that that’s true, but to the extent that it might be it seems to me that dealing with the immigration issue by allowing people to come here to work might reduce the drug problems, but at the same time, by restructuring US drugs laws, we might resolve that problem as well. It seems to me that two prohibitions one against labor and the other against drugs are creating problems that might be unnecessary.
[i]”Also, is not this decision handed down by the 9th Circuit in the federal court system, the most overturned Circuit in federal court system in the country? Correct me if I have this wrong.”[/i]
You have this wrong. [quote]Susan Bolton is a federal judge for the United States District Court for the District of Arizona. She joined the court in 2000 after being nominated by President Bill Clinton. [/quote]
She has the other part wrong as well. First, in absolute terms you would expect the ninth circuit to be overturned more than others since it’s the largest in terms of states, judges, etc.
Second, the info I can find suggests that you’re still only talking about 20 cases overturned out of 16,000 decisions.
It’s a dangerous game. In 2004, The GOP won in California and elsewhere doing that but they activated a Latino base, they shifted their party allegiance, and turned California with few exceptions into a reliably blue state.
Do you mean 1994 rather than 2004?
Immigration issues seem to come up mainly when the economy is doing poorly. Once the economy is rolling again, then interest subsides.
It’s interesting to watch immigration issues vary on a state by state basis within political parties. In bucking the trend, Texas Republicans have adopted policies a little friendlier to Latino/Hispanic immigrants than have California Republicans. As a result, Republicans there have enjoyed more reliable support from Latino voters.
Also, is not this decision handed down by the 9th Circuit in the federal court system,
The 9th Circuit did not hand down the decsion in this case, but Gov. Brewer has stated that they will be appealing to the aforementioned court.
It really doesn’t matter how the 9th District Court of Schlemiels rule on this case because it will ultimately end up in the Supreme Court and Judge Kennedy will make the final decision. What the GOP will be going for in the coming election is secure borders which you’ll have a hard time of finding many Americans who are against that. Talk about a winning platform.
In the short running it’s winning issue, in the long run, demographics are against you. Alienate the Hispanics and Republicans are going to be a minority party for the next generation.
A documentary that’s making its way around the country, addressing an example of immigration reform that may not have been too different from SB 1070:
9500 Libery
[url]http://www.9500liberty.com/[/url]
[i]”What the GOP will be going for in the coming election is secure borders which you’ll have a hard time of finding many Americans who are against that.”[/i]
Electoral politics notwithstanding, I tend to think that the “war on illegal immigration” is similar to the “war on drugs,” which again is similar to the old “war on alcohol.” They are all destined to fail, because where there is a great demand, the supply will naturally follow.
The antis — that is, the people who today are agitated largely by Mexicans illegally coming to and working in the United States — want us to follow two approaches, neither of which, history suggests, has much chance of solving the problem or even making much of a difference.
The first approach advocated by the antis is to “secure the border.” I don’t think building better fences and putting some more border patrol agents in place is itself a bad idea. However, doing that just moves the ingress points to somewhere else. This is what we have found with the war on drugs. It’s just what was found in the 1920s with the war on booze. As long as the demand is there, the supply will figure out a new way of meeting that demand.
The second approach of the antis is to attack the demand, by penalizing employers who hire illegals. Unfortunately, that notion derives from a misunderstanding of what the demand eminates from. It’s not from U.S. employers prefering Mexican workers ceteris paribus. It’s a result of the wage differential between the United States and Mexico. That difference is — to paraphrase Ross Perot — the giant sucking sound pulling workers out of Mexico and into the United States.
We used to require very little in identification for an employer to legally hire an employee. But ever since the Reagan amnesty program was put in place, we have required multiple forms of ID for someone to be hired legally:
[img]http://bf.unl.edu/policies/hr/I9.gif[/img]
And yet ever since, illegal immigration has continued apace. Either the illegals are getting good fake IDs or employers are cheating the law or some combination of those two is taking place. Since most illegal aliens work either in remote locations (such as farms or agricultural processing facilities) or they work for very small scale employers (such as in non-chain restaurants or as household laborers), it’s practically impossible to stop this from continuing.
The calculation from the worker’s perspective is quite easy and obvious: I can make $2 a day picking lettuce in Mexico or I can make $85 a day picking lettuce in Arvin, CA. Which one seems like a better proposition?
Then consider the math from the Arvin farmer’s perspective. I need a man who can stand working outdoors in 100 degree heat for 10 hours a day, 6 days a week. I need a man who wants to work hard and keeps working no matter what. I am happy to pay anyone to do this job, and I will pay him for his productivity. If I don’t have a good farm laborer working for me, I will make no money and my lettuce will rot in the fields. If a Mexican shows up to take the job, I’ll hire him. No Americans ever apply. The work is too hard and they can make a better living in an air-conditioned store near where they live. They don’t want to drive out here into the middle of nowhere to make $85. If they work one day, their backs will be so sore they will never return the next.
Now, if the antis decide we need to imprison that lettuce farmer for making a rational decision, then we will grow no lettuce. We will grow no strawberries. We will grow no grapes. No tomatoes which are meant to be eaten fresh can be grown commercially in California.
In the end, if we invest all of our resources in fighting a natural marriage of worker and work, we will no longer have any resources.
Thus, the approach of the antis will fail. It may win elections, just like the war on drugs wins elections. But it won’t solve any problems. It will just create new ones.
Fortunately, there is an obvious solution. (It was essentially proposed by GW Bush.) It’s to go back to a guest-worker program, much like we had until 1964 when the Bracero Program was ended. With guest-workers, we will be able to have the workers we need to fill the supply, and they will not be here illegally. They will be regulated and taxed and their contribution to our society will be more easilly accounted for.
“Today/Gallup poll conducted May 1-2 shows that 9 out of 10 Americans say it is moderately to extremely important to them for the federal government to take steps this year to secure the border against illegal immigration”
Once again David, “secure borders” is a winning issue.
rusty49: A poll from three months ago? Is support for that position as high now? How does that rank agains other competing political issues?
Here is some more detailed polling of our attitudes about immigration: [url]http://www.pollingreport.com/immigration.htm[/url]
The differential between the second and third questions indicates a possibility that people simply do not know what Arizona’s law does.
I think Rusty is right that in the short term it may be a winning issue for the GOP, but I think this is almost 1964 Civil Rights Act all over again, you win now but lose later.
It would be hard to say exactly what the practical outcome of Arizona’s law would have been had it been upheld. It pretty much required ethnic profiling in order to work, but the governor’s executive order and federal law prohibit that. Had it gone into effect exactly as written, it would probably have created a mish-mash of enforcement actions in different jurisdictions as each sheriff and police chief tried to implement it.
ERM: “look to other states to come up with their own laws similar to Arizona, but corrected in light of Judge Bolton’s criticisms of Arizona law.”
That would be perfectly appropriate, IMO. The judge threw out the most contentious parts of the law. So other states would likely enact better ones anyway. I don’t know if the issue of federal priority on this issue has been resolved, though.
Rich’s analysis is excellent. The fact is that there are major interest groups that need the labor these folks provide. Reagan and Carter recognized that, and the law from the 1980’s attempted to provide for a stable labor supply for agriculture. That is currently derided as “amnesty.”
But we have this interesting item from the polls I linked:
“Creating a program that would allow illegal immigrants already living in the United States for a number of years to stay here and apply to legally remain in this country permanently if they had a job and paid back taxes”
Favor: 81Oppose: 19
I believe that creating such a program constitutes what opponents are currently calling amnesty. The positions of the “anti’s” is totally unrealistic. Were we actually able to seal our borders and deport everyone who is here illegally, agriculture and various service industries would come to a complete halt. Apparently 81% of the public, if the poll I cite is any indication, understands that, or has basic compassion, or both.
Re: politics of pre/anti immigration: I recall seeing a few years ago a poll indicating that nearly half of LEGAL CITIZENS of Hispanic descent were for better enforcement of US border with Mexico. As border laws are enforced and fewer illegals sneak in, the people in the US of Hispanic descent will have less competition for their labor, and see their pay increase–this should influence shifts of many to the Republican side.
Re: we can’t do without their labor: We will likely continue to have a labor surplus in the US for at least another few years. As border enforcement gets more stringent over a several-year period, current residents will gradually fill the gaps in the labor pool. Fruit and veggie crops are much less dependent on manual labor than was the case several decades ago; only a few crops are still labor-intensive; it is likely that costs of this U.S. produce will increase significantly; as well as the costs of your gardener, house-cleaner, and nanny (socialized subsidy of cheap labor to upper middle class & wealthy).
jimt: ” Fruit and veggie crops are much less dependent on manual labor than was the case several decades ago…”
I can’t think of very many fruit and veg crops for which that is the case, though you could well have more info than I do. I believe that the specialty crops that make up much of California’s agriculture remain very labor-intensive. Although you could be right in one sense: thanks to NAFTA, some such as Brussels sprouts have shifted almost entirely to Mexico.
Severe restrictions on illegal immigrant labor would have a disproportionate impact on a small number of states. According to one source, “California, Florida, Washington, Texas, Oregon, and North Carolina—account for about half of the nation’s expenditure on hired [ag] labor.”
In California total farm labor cost 22% of the total value of ag income; in states with less labor-intensive crops such as Iowa, it was only 2.5%. The crops that are most labor-intensive and thus heaviest in use of illegal labor are fruit and nut tree crops, vegetables, dairy, grapes, and greenhouse and nursery stock — all major crops in California (grapes, dairy and nursery stock are the three top “crops” in California). Organic produce, an increasing category, is very labor-intensive.
Of course getting people to work for 10 hours a day before they are able to collect overtime also makes it hard to recruit workers. Thanks Arnold.
Rusty your assumptions about the Supreme Court is wide of the mark. The Supreme Court has decided a number of cases in the last few years in support of immigrants. These cases were decided not on popularity or political calculus but on the clarity of the law. Law that has developed over the last 160 years going back to Dred Scott. Bolton ordered a stay. The 9th circuit will hear an appeal of the stay scheduled for just after the midterms. They will uphold the stay. Arizona will appeal to SCOTUS. It is questionable as to whether the SCOTUS will hear the appeal. We will see.
Don–thanks for the update;it was my understanding that continuing mechanization has continued to reduce (but not eliminate) the need for manual labor over the last few decades for many fruit and vegetable crops–even some fruits and nuts (aren’t trunk-shaking devices now used to harvest some of these crops?); but sounds like you’ve got some of the latest info. on hand.
Regarding the organic crops; I had overlooked this; yes I’d agree with intensive manual labor required for these.
But isn’t it also true that since 2000 only ~10% of illegal migrants have been employed seasonally in manual labor for commercial agriculture? It’s my understanding most of them have been/are employed in construction related activities, landscaping and gardening, restaurants/fast-food and motels/hotels, and domestic help. In these labor markets, I don’t think you’ll have a hard time finding citizens to take on these jobs; though with fewer illegals to compete with, employee pay rate will float up (helps our poor and lower-middle class citizens).
I 100% disagree with the argument (really just a flat statement) that “illegals do jobs citizens won’t take”.
I’m a US citizen (white at that), and as a teen I picked strawberries for a small commercial farm during a couple of summers (we worked mornings only). It was hard work and didn’t pay much; but I was OK with doing it and didn’t feel it was a hardship–I must admit that I’m glad I didn’t have to do it for more than half a day, or for more than a few weeks in summer, though. More expensive manual labor will act to further stimulate innovation in mechanization!!
Pew, 2005: unauthorized migrants made up … 24% of all workers employed in farming occupations, 17% in cleaning, 14% in construction and 12% in food preparation.
From an industry report about farm labor contactors (unsourced): “Particularly in the FLC-heavy California, the dependence on illegal farm labor, most notably from previously untapped regions in Mexico, has skyrocketed to an estimated 43 percent of hired farm workers.”
Tree shakers are used for all tree nut crops. I live next door to an independent nut processor. The entire work crew, as far as I can tell, is Hispanic, but of course (as with any Arizona police officer) I have no way of knowing their immigration status. That includes the women who sort, process, and box the nuts, the men who mow and spray the orchards, and the men who shake the trees, rake the piles, and vacuum the nuts, and the men who do the pruning and drive the forklifts and trucks.
Yes, over the last few decades mechanization has come in to several crops, but many of our specialty crops are not mechanized (no strawberry pickers yet that don’t bruise the fruit; broccoli, lettuce, etc. are all hand-harvested). Interestingly, the biggest wholesale nurseries use lots of migrant labor. I became aware of most of this data when I was on the state nursery association board for several years. The national nursery association sides with the big ag growers on immigration issues.
“I’m glad I didn’t have to do it for more than half a day, or for more than a few weeks in summer” – that pretty much sums up the problem. I picked prunes once. I picked prunes once. You pick the plums off the ground, in August. You’re not going to get a lot of takers for that work.
I believe those service industries you mention would have difficulty filling jobs in any labor market.
we wouldn’t be having this discussion if Obama and his predecessors had been doing their job in the first place. The Fed govt won’t do it because they want cheap votes from latinos, and the people of Arizona, in their desperation began to do the job the govt. is not itself doing. I say we just put up an electified fence and be done with it.
I say we just put up an electified fence and be done with it.
Why do you think that an electrified fence would do the trick? I can think of maybe half a dozen ways to get around that, and I’m sure that enterprising and determined illegals would come up with more ways.
If you put up an electric fence and think you are “done with it,” you will not only miss half of the current illegal aliens, you will simply encourage the other half to do what 5.5 million illegals in the U.S. have done–fly to the United States on a tourist or student or temporary work visa and then when the visa expires, they stay and live here illegally.
The Arizona Republic reported this ([url]http://www.azcentral.com/news/articles/2010/05/10/20100510illegal-immigrants-overstay.html[/url]) recently: [quote]Not every illegal immigrant in the United States snuck across the border. A very large number, perhaps as many as 5.5 million, entered legally with visas and then never left.
But unlike the hundreds of thousands of illegal immigrants apprehended at the border every year, very few visa violators are ever caught.
The Border Patrol’s Tucson sector, the busiest in the nation, logged 241,673 apprehensions last fiscal year. In comparison, federal agents in Arizona [b]tracked down and arrested 27 people who had overstayed their visas[/b].
Visa violators represent nearly half of the 11 million illegal immigrants in the country. But they have been largely ignored amid a national clamor to secure the border, fueled in part by Arizona’s tough new immigration law, the killing of a southern Arizona rancher and worries that cartel violence in Mexico could spill into this country, analysts and experts say.[/quote]
Don–good to see the numbers, wish such stats were more widely publicized in the press considering the heated national debate on this issue.
–do you know if the Pew 2005 stats included absolute number estimates for unauthorized migrants in each employment category? For example, did the 24% of farm employment by unauthorized migrants outnumber the 14% of construction employment by unauthorized migrants? (Could happen if total # of construction employees had been double or more the total # of farm employees; as of that 2005 Pew report–I think total construction-related employment has decreased substantially since 2005.)