SB1070: Still a Ticking Bomb

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Written By Raquel Aldana

Arizona, United States/Mexico Border

Immigrants partial judicial victory in Arizona against SB 1070 a day before the law was to go into effect did not stop protesters from marching. As I am from Arizona, several of my Latino Facebook friends began to post comments about some of their friends being arrested, while others who worked for city or state agencies near the protests would comment on the turmoil and the police heavy handed response.  In fact, at least 50 protestors were arrested yesterday, including a young lawyer for the Center on Constitutional Rights, Sunita Patel, who arrested as she was carrying out her legal observer duties at the protest to ensure the legal rights of those arrested.

The protest and ensuing arrests may have puzzled some who saw the case as a victory for immigrants. However, many of the protestors and those who supported them from afar, including me, understood that the struggle against SB1070 is not solely legal, but principally political. Consequently, it is insufficient to win the legal arguments against SB1070 in court; the voice of this new civil rights movement must also reach politicians and ideally change the hearts and minds of the U.S. public.

Judge Susan R. Bolton’s injunction against four provisions of SB1070 was not insignificant. The holding struck down some of the most controversial aspects of the law that required police officers to make a reasonable attempt to determine the immigration status of persons detained and authorized police to make warrantless arrests where there is probable cause that a person is removable from the United States. The court worried not only about overburdening the federal immigration system but with racial profiling and the effect that this law would have on forcing certain lawful immigrants and U.S. citizens to carry documents to prove their immigration status. In addition, the court struck down state crimes that did not exist under federal law, namely the crime for the failure to apply for registration papers or for soliciting or performing work without authorization, reasoning that such laws, inter alia, force the federal government to redefine federal immigration priorities.  The ruling against these provisions is hugely important because it begins to settle a misguided assertion by several states that police have inherent powers to enforce the federal immigration laws in the absence of express Congressional authorization. Several states who were already modeling the SB1070 enforcement provisions will have to think hard about wasting precious resources to defend laws that are likely to continue to be enjoined and ultimately struck down as unconstitutional by the courts.

Still, the holding left intact many of other provisions, including ones that would proscribe the adoption of sanctuary policies, would amend the crime for the employment of unauthorized immigrants and for checking employment eligibility, and criminalizes stopping to pick up day laborers and for day laborers to enter the car. And these kinds of provisions are also presents in hundreds of other local immigration ordinances adopted by localities every year. Thus, the legal battles will be ongoing as states continue to push the limits of their power to regulate immigrants in their midst.

The proponents of SB1070, however, did not adopt the legislation to win the legal battles but to capture political power. SB1070 was a strategic political bomb planted by Republicans against Democrats in on ongoing fierce battle to reclaim the Presidency and Congress. Understood this way, SB1070’s explosion makes perfect sense. Its detonation, in late April of this year, guaranteed its place in the national and local debates leading to the November elections. And while President Obama is not on the ballot, the target is the Presidential office he occupies and the Congress he must lead. The November 2010 elections are fiercely contested, and according to respected political experts, Republicans have a legitimate shot at minimum of capturing control of the House.[1]

The ingredients that went into creating the SB1070 bomb were carefully chosen and mixed to ignite anti-immigrant sentiments and mobilize a grass-roots movement of voters against President Obama and the current Congress. This bomb, if successful, could have staying power and define the next presidency in favor of Republicans. This, however, will depend on many factors, including whether a counter-response to the bomb, particularly by Latino voters, could backfire on Republicans. It will also depend, moreover, on the role that Democrats will play in re-capturing (which it won in the last Presidential election) or losing Latino support. Some of this may hinge on the passage of comprehensive immigration reform, but it cannot be the sole factor. Unfortunately, President Obama is largely failing immigrants by engaging in very tough inside-the border- immigration enforcement, seemingly for benign reasons: to make comprehensive immigration reform palatable to certain Republicans and many Democrats. Ironically, the political tactic, which seems to be imitate or improve upon tough federal enforcement of immigration laws to push for immigration reform, is not working and is very unlikely to work for this administration. For political reasons, Republicans will never concede that President Obama has been tough, perhaps even tougher than former President Bush in securing the Border and enforcing the immigration laws inside the border. It is also not at all clear that the tactic will sway enough voters to back comprehensive immigration reform if they view Democrats as tough against current and future undocumented migration. And yet, the risk is high that Latino voters and others who support immigrants have noticed will grow disenchanted with the Democratic Party. True, most of these voters are unlikely to turn to the Republican Party, as it moves deeper into anti-immigrant territory, but it could kill the spirit of political participation and repeat the same electoral apathy and despair present in Latin American countries. Democrats, if they wish to avoid this, must be vigilant and bolder and stop this trend to try to capture Republican support by playing tough on immigrants. One obvious place to start is for the Obama administration at a minimum to rescind the Secured Communities and the Section 287(g) agreements with Arizona.

It appears that President Obama is beginning to listen. Today, a leaked memorandum from the USCIS revealing how and whether President Obama can act to institute some policies to ameliorate the plight of undocumented immigrants without congressional support has stirred new controversy. We will see how President Obama will respond to the fierce attacks against him that will follow him and Democrats to the November elections.

[1] NPR, On the Ballot: Political Junkie with Ken Rudie, Rothenbeg: With 4 Months To Go, House Could Turn, Senate Probably Not, July 7, 2010.