The SS and SB 1070

Arizona’s highly inflammatory SB 1070 is creating a firestorm of responses from inter alia civil rights and immigrant rights activists, lawyers, including political representatives from the same state all wisely opposing the statute. While no one is disputing protecting geographical borders is important, Arizona “forgets” it is inside a nation that values civil rights and the rule of law. As many assert SB 1070 in contrast will directly expedite the racial profiling of many Latinos that appear or are perceived in unlawful status. Nonetheless many residents of non-Mexican descent support the legislation and the governor’s approval rating as she perceives it is increasing.

With the ink of SB 1070 barely dry forthcoming legal challenges, economic boycotts and further collateral burdens do not bode well for a state claiming economic distress. States are tethered to federal law and in this instance, SB 1070 conflicts not only with the supremacy clause but also stands to violate the fourth amendment and most likely will trigger disparate and unequal treatment claims. Violations of civil rights violations moreover will also follow and inspire new interpretations of prevailing legal standards. Consequently, to promulgate a law that offends the prevailing legal templates at base level forewarns of costly, and expensive litigation in a state that recently stated it could not afford to keep its highway rest stops open.

Aside from the broad girth of challenges emerging thus far, a host of yet unknown but forthcoming negative externalities however also underscore the questionable legal standing of SB 1070. Specifically, Arizona’s simplistic approach to the complexities of immigration law caused me to recall my time with MALDEF, in San Antonio, shortly after the passage of the Immigration Reform Control Act of 1986 (“IRCA”). From that time one externality of the past that is ignored in the present illustrates that SB 1070 also promises to burden non-Latino “trespassers.”

To the present IRCA obligates all potential employees to produce various documents demonstrating work eligibility. Following its adoption IRCA spawned forth employers’ confusion over the type of documentation required and inspired a culture where demands for proof of “legality” not only accelerated but also became a norm absent standards. It was in sum wild times for the practicing bar with dubious and harmful practices injuring not only the undocumented but spanned its reach to citizens and others in the nation. For example until challenged highway patrol officers demanded proof of immigration status from drivers stopping at Texas rest stops.

Not uncommonly other disbelieving “interpretations” of IRCA’s purported intent emerged but one incident in particular left an imprint. Although a few miles from the Texas-Mexico border, BP agents upon spotting a pick-up truck immediately flew into action. Get out the smelling salts because what drew their attention wasn’t a driving “infraction” but rather the rancher driving the truck and accompanied by his wife also had three of their Chicano workers with them. After stopping them and to the horror of the husband, wife and employees, the agents surrounded their vehicle with guns blazing. The agents then demanded proof of the legal status of the workers, the disbelieving husband and the wife. It happened that all five were citizens or in lawful status.

Accordingly and herein lies yet another externality for avid supporters of SB 1070 who naively believe they will escape its purported intent and reach. Reaching beyond the racial profiling and simplistic interpretation of the agents in targeting the ranchers’ group were the victims’ reactions upon facing guns coupled with the “request” for “documentation.” Specifically years ago the wife had fled Nazi Germany to escape the odious ideology of the SS and the heinous violence of the times. Surrounded by agents with guns to check documentation of her “lawful presence” caused her to “return” to Nazi Germany. She was in sum beyond incredulous that in the U.S. she was ultimately experiencing what she had long ago fled.

Immigration law is riddled with innumerable complexities and federal attempts to “fix” our broken system have been ongoing for decades. SB 1070’s shortsighted approach ignores the innumerable reasons why the undocumented flee to the U.S and for reference purposes a few examples are thereby included. Specifically until employers are sanctioned appropriately or recognize they must pay living wages, or until NAFTA stops hurting the Indigenous and small farmers in Mexico, thereby forcing them to work as the nation’s farmworkers, or until sectoral labor demands are met by U.S. workers who refuse to work in areas the undocumented are found, or until slave trafficking is terminated or until the nation recognizes the labor of the undocumented is urgently needed—then and only then— will answers to our broken immigration system begin to surface.

Feel free to add to the above but also trust further unknown externalities will also reveal at great cost and sacrifice the harm of SB 1070.