Wednesday, April 28, 2010
New Immigration Legislation Places Arizona Political Structure Under Pressure
As the national uproar over SB 1070 grows, the Arizona political structure begins to show signs of stress. Pima County Sheriff Clarence Dupnik, whose jusrisdiction includes Tucson, has announced that the new immigration "law" will necessarily involve racial profiling and he will not enforce it. (ABC15 Staff, Arizona Sheriff Won't Enforce New Immigration Law, ABC15.com, April 28, 2010). In addition, Arizona Attorney General Terry Goddard, who is required to defend the legislation on behalf of the State of Arizona, has said that the statute is a "tragic mistake" and that he "would probably recuse himself" from the matter. (John Schwartz and Randal C. Archibold, A Law Facing a Tough Road Through the Courts, New York Times, April 27, 2010).
Tuesday, April 27, 2010
An interesting post from a fellow Blogger...
Is Arizona's New Immigration Law Preempted?
I've been meaning to post something on Arizona's new immigration law, but haven't had the time until now. The constitutional challenge to the law will likely be that it is preempted by existing federal immigration law, and therefore violates the Supremacy Clause of Article VI, but the constitutional question is far from clear.
The new Arizona law aims to assist in enforcement of federal laws against illegal immigration. So this is not a statute that only incidentally affects federal immigration policy. Quite the contrary: its stated purpose is to cooperatively assist the federal government in protecting the nation's borders, identifying illegal aliens, apprehending them, and delivering them to federal authorities. The bill was deliberately written to be preemption-proof by tracking federal definitions and placing state law enforcement officials in the service of enforcing federal law.
If so, how can the law be preempted by federal law? The answer is that the federal government might well believe that Arizona's attempt at helping it enforce its immigration laws is counterproductive and therefore actually conflicts with federal enforcement policy. In this case, the fact that Arizona is tracking federal definitions of who is an illegal alien might make things worse for the law's constitutionality, not better. First, Arizona will not be able to justify the law on the grounds that it has only incidental effects on federal immigration policy; Second, it will be more difficult for Arizona to argue that the scope of its new law is not already occupied by the federal scheme and that the law does not interfere with federal law's balancing of the relative costs and benefits of adopting particular enforcement policies.
The leading Supreme Court case on preemption of state immigration law, De Canas v. Bica, is now thirty five years old and predates recent federal immigration reforms, so it is anybody's guess about what the current Supreme Court would think about the issue. De Canas upheld a California law which made it a crime to knowingly hire an illegal aliens; the decision has lots of language that gives states plenty of room to pass immigration regulations consistent with federal law. On the other hand, DeCanas assumed that the law in question did not significantly interfere with federal immigration policy, or at least, there was no evidence in the record that it did.
There is a much stronger argument that the new Arizona law, while purporting to be helpful, actually sticks a thumb in the eye of the federal government by engaging in draconian measures. The Arizona legislature appears to be saying, in effect: "since you won't police the borders, we will, and if you don't like it, pass some new legislation." If this is the point of the new Arizona law, then the law isn't really an attempt at cooperation but an attempt at provocation and one-upmanship, and the chances that it is preempted increase.
Of course, what a given federal court will do in this situation is difficult to predict, because federal courts can construe the Arizona law and existing federal law to make them seem harmonious if it wants to uphold the legislation, or in serious conflict if the court wants to hold that the new law is preempted. The law of preemption gives courts considerable discretion, and much depends on what the bill seems to symbolize and how it is actually enforced in practice.
Thus, opponents of the new law would be well advised to assemble a factual record demonstrating how enforcement of the new law interferes with federal policy or makes it more difficult, for example, by alienating Latino communities and other local organizations in Arizona, thereby making them more reluctant to provide information or cooperation in ways that assist enforcement. Evidence of overreaching by state law enforcement officials would also tend to show that what purports to be a cooperative measure is not actually cooperative at all.
By Jack Balkin
I've been meaning to post something on Arizona's new immigration law, but haven't had the time until now. The constitutional challenge to the law will likely be that it is preempted by existing federal immigration law, and therefore violates the Supremacy Clause of Article VI, but the constitutional question is far from clear.
The new Arizona law aims to assist in enforcement of federal laws against illegal immigration. So this is not a statute that only incidentally affects federal immigration policy. Quite the contrary: its stated purpose is to cooperatively assist the federal government in protecting the nation's borders, identifying illegal aliens, apprehending them, and delivering them to federal authorities. The bill was deliberately written to be preemption-proof by tracking federal definitions and placing state law enforcement officials in the service of enforcing federal law.
If so, how can the law be preempted by federal law? The answer is that the federal government might well believe that Arizona's attempt at helping it enforce its immigration laws is counterproductive and therefore actually conflicts with federal enforcement policy. In this case, the fact that Arizona is tracking federal definitions of who is an illegal alien might make things worse for the law's constitutionality, not better. First, Arizona will not be able to justify the law on the grounds that it has only incidental effects on federal immigration policy; Second, it will be more difficult for Arizona to argue that the scope of its new law is not already occupied by the federal scheme and that the law does not interfere with federal law's balancing of the relative costs and benefits of adopting particular enforcement policies.
The leading Supreme Court case on preemption of state immigration law, De Canas v. Bica, is now thirty five years old and predates recent federal immigration reforms, so it is anybody's guess about what the current Supreme Court would think about the issue. De Canas upheld a California law which made it a crime to knowingly hire an illegal aliens; the decision has lots of language that gives states plenty of room to pass immigration regulations consistent with federal law. On the other hand, DeCanas assumed that the law in question did not significantly interfere with federal immigration policy, or at least, there was no evidence in the record that it did.
There is a much stronger argument that the new Arizona law, while purporting to be helpful, actually sticks a thumb in the eye of the federal government by engaging in draconian measures. The Arizona legislature appears to be saying, in effect: "since you won't police the borders, we will, and if you don't like it, pass some new legislation." If this is the point of the new Arizona law, then the law isn't really an attempt at cooperation but an attempt at provocation and one-upmanship, and the chances that it is preempted increase.
Of course, what a given federal court will do in this situation is difficult to predict, because federal courts can construe the Arizona law and existing federal law to make them seem harmonious if it wants to uphold the legislation, or in serious conflict if the court wants to hold that the new law is preempted. The law of preemption gives courts considerable discretion, and much depends on what the bill seems to symbolize and how it is actually enforced in practice.
Thus, opponents of the new law would be well advised to assemble a factual record demonstrating how enforcement of the new law interferes with federal policy or makes it more difficult, for example, by alienating Latino communities and other local organizations in Arizona, thereby making them more reluctant to provide information or cooperation in ways that assist enforcement. Evidence of overreaching by state law enforcement officials would also tend to show that what purports to be a cooperative measure is not actually cooperative at all.
By Jack Balkin
Some Republicans Back Away From New Arizona Immigration Legislation
As the call for a boycott of Arizona goes viral on the internet, some conservatives are quickly distancing themselves from the new harsh immigration legislation. Today South Carolina Senator Lindsey Graham called the new "law" unconstitutional. Similarly, former Florida Governor Jeb Bush criticized the new legislation and said that immigration issues should be handled at the federal level. Likewise, Florida U.S. Senate candidate Marco Rubio expressed "concerns" about the statute. (Stephanie Condon, Lindsey Graham: I think Arizona Immigration Law is Unconstitutional, CBS News, April 27, 2010; Jonathan Martin, Jeb Bush Speaks Out Against Arizona Law, Politico, April 27, 2010; Brandon Larrabee, Rubio on Immigration Law: "I do Have Concerns," The Florida Times Union, April 27, 2010.)
Jon Stewart covers the new anti-Latino Law
Here is a link to the Daily Show episode that covers Arizona's attacks on Latinos and Latinas. The first eight minutes cover the Arionza law:
http://www.thedailyshow.com/full-episodes/mon-april-26-2010-lisa-p--jackson
http://www.thedailyshow.com/full-episodes/mon-april-26-2010-lisa-p--jackson
Please support our Arizona Petition...
Good people,
Please take a moment to read the petition draft by members of this group and express support by commenting on the post with your name and title. Our goal is to send this petition to political leaders and media outlets in the hope of promoting change.
Arizona Petition
The undersigned law professors and interested individuals write this petition requesting the Governor and the Legislature of the State of Arizona to repeal SB 1070, in the alternative, call upon Congress to conduct hearings on Arizona’s ultra virus act of authorizing local police to enforce federal immigration laws without an express delegation from Congress. The petitioners also urge President Obama to direct the Justice Department Civil Rights Division to mobilize quickly to educate the public how to report civil rights violations associated with SB 1070.
With the passage of SB 1070, the state of Arizona has ignored legal precedent striking down similar state encroachments on federal supremacy relating to immigration. Moreover, courts have held similar encroachments to be violative of Due Process and Equal Protection. Astonishingly, this new law was passed despite ongoing litigation in the state challenging previous Arizona efforts to regulate immigration.
SB 1070 is also unwise public policy that will likely result in repugnant police action such as racial profiling. The law also violates the Fifth and Sixth Amendment of the United States Constitution. It turns the presumption of innocence on its ear and will invariably lead to wrongful and exceedingly long incarcerations. Specifically, SB 1070 allows local law enforcement to incarcerate individuals until the local authorities are contacted by the U.S. government. Under the Act, whenever a law enforcement officer has "reasonable suspicion" that the person "is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.” The person's immigration status shall be verified with the federal government pursuant to 8 United States code section 1373(c). Presumably, under SB 1070, an accused illegal can either file a writ of Habeas Corpus in federal court or wait for the federal government to verify his or her status.
Despite contemporary disdain for stereotyping and stigma, this law will empower state police officers to request documentation from people to ascertain whether they are undocumented, which will likely be based solely on the appearance of these presumed illegals or the language they speak. Reminiscent of the shameful raids during one of this country’s darkest hours—Operation Wetback of the 1940s—the efforts by local authorities in Arizona may very well lead to the wrongful incarceration and even deportations of far too many United States citizens and legal residents. Through this act, local authorities will be empowered to presume individuals—most likely Hispanic members of its community— illegal. Such efforts must not be tolerated. SB 1070 will also likely cause undocumented and other members of the immigrant community to be vulnerable to crime, as they will not report crimes to law enforcement if they think that will put them in jeopardy. Not only is this law unconstitutional and unwise public policy, it will cost local and federal taxpayers millions in terms of enforcement, in efforts at verifying status of detained individuals, and through the countless law suits likely resulting from wrongful arrests and false imprisonment.
Therefore, the undersigned respectfully request the state of Arizona to rescind its unconstitutional and unwise law, or in the alternative, we urge President Obama and the federal government to step in and protect the civil and human rights of this republic.
Please take a moment to read the petition draft by members of this group and express support by commenting on the post with your name and title. Our goal is to send this petition to political leaders and media outlets in the hope of promoting change.
Arizona Petition
The undersigned law professors and interested individuals write this petition requesting the Governor and the Legislature of the State of Arizona to repeal SB 1070, in the alternative, call upon Congress to conduct hearings on Arizona’s ultra virus act of authorizing local police to enforce federal immigration laws without an express delegation from Congress. The petitioners also urge President Obama to direct the Justice Department Civil Rights Division to mobilize quickly to educate the public how to report civil rights violations associated with SB 1070.
With the passage of SB 1070, the state of Arizona has ignored legal precedent striking down similar state encroachments on federal supremacy relating to immigration. Moreover, courts have held similar encroachments to be violative of Due Process and Equal Protection. Astonishingly, this new law was passed despite ongoing litigation in the state challenging previous Arizona efforts to regulate immigration.
SB 1070 is also unwise public policy that will likely result in repugnant police action such as racial profiling. The law also violates the Fifth and Sixth Amendment of the United States Constitution. It turns the presumption of innocence on its ear and will invariably lead to wrongful and exceedingly long incarcerations. Specifically, SB 1070 allows local law enforcement to incarcerate individuals until the local authorities are contacted by the U.S. government. Under the Act, whenever a law enforcement officer has "reasonable suspicion" that the person "is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.” The person's immigration status shall be verified with the federal government pursuant to 8 United States code section 1373(c). Presumably, under SB 1070, an accused illegal can either file a writ of Habeas Corpus in federal court or wait for the federal government to verify his or her status.
Despite contemporary disdain for stereotyping and stigma, this law will empower state police officers to request documentation from people to ascertain whether they are undocumented, which will likely be based solely on the appearance of these presumed illegals or the language they speak. Reminiscent of the shameful raids during one of this country’s darkest hours—Operation Wetback of the 1940s—the efforts by local authorities in Arizona may very well lead to the wrongful incarceration and even deportations of far too many United States citizens and legal residents. Through this act, local authorities will be empowered to presume individuals—most likely Hispanic members of its community— illegal. Such efforts must not be tolerated. SB 1070 will also likely cause undocumented and other members of the immigrant community to be vulnerable to crime, as they will not report crimes to law enforcement if they think that will put them in jeopardy. Not only is this law unconstitutional and unwise public policy, it will cost local and federal taxpayers millions in terms of enforcement, in efforts at verifying status of detained individuals, and through the countless law suits likely resulting from wrongful arrests and false imprisonment.
Therefore, the undersigned respectfully request the state of Arizona to rescind its unconstitutional and unwise law, or in the alternative, we urge President Obama and the federal government to step in and protect the civil and human rights of this republic.
Monday, April 26, 2010
The Economic Crisis and Latino Education
I was having dinner with a college friend, Marisol, who is a faculty member at one of the arts and sciences colleges in the California university system. We were remembering our stories from our undergraduate years in New York. It’s interesting how time seems to lessen the pain of those years. While we ate our appetizers, at a restaurant overlooking Biscayne Bay with a panoramic view of the downtown Miami skyline, we joked about how many times our meal cards had a zero balance, and the nice elderly Latina lady from Panama who worked in the cafeteria would let us eat any way. She was so proud that two young Latinas, one from Puerto Rico and the other from the Dominican were attending such a fine university that the fact that we were too poor to eat in the student cafeteria, did not phase her at all. During our main course, Marisol and I laughed at how we never had enough money to buy all the assigned textbooks for our classes. So we approached the lack of funds for textbooks in a tripartite process. First, we bought what we could. Second, we asked our professors if we could “borrow for a few days” their extra copy of the textbooks. No one ever mentioned that “a few days” was always for the entire semester. Third, we read the copies that the professors had placed on reserve. We were always careful not to write in the reserved copies, primarily out of respect for our professors who were considerate enough to place textbook copies on reserve, as if they knew two young Latinas one from San Juan via the streets of El Barrio in Spanish Harlem, and the other from Puerto Plata via the streets of Flatbush Brooklyn could not afford to purchase all the requisite textbooks because our scholarships only covered tuition, room, and board. Our families were supposed to pay for textbooks. I guess our moms never got a copy of the financial aid distribution letters.
During desert, Marisol and I stopped laughing. Nostalgia had run its course. Almost simultaneously, we began to talk about something that has been troubling both of us. Although the Latino population is increasing exponentially in the United States, Latino students are not getting into the higher education pipeline. And, although Latino faculty has increased we also noticed that Latino faculty members born, raised and educated in Latin America tend to be from privileged backgrounds because the majority of the people in Latin America are poor. Therefore, if one has the money to go to college in Latin America, you are almost certainly from a well-to-do family. It is only in the United States that Latinos have the upward mobility to go from poverty-to-working-class-to-university-to-middle-class-to-upper-middle-class-to-very-well-off-to-wealthy. At least, that’s the way it has been in the past. There seems to be a growing class divide within the U.S. Latino community circulating around the concept of education, the access to education and the benefits of education. 
Marisol shared that California’s economic collapse will have a devastating impact on education in the Latino community because California has been the state that has produced the highest number of educated Latinos. I had no idea. For some reason, I thought New York had produced the highest number of educated Latinos. If Marisol is correct, then California’s economic collapse will prove disastrous for all Latinos, not just those in California because in times of economic turmoil, when state legislatures tighten their collective belts, programs for minorities especially education opportunity programs are one of the most expendable programs. For example, during the dot com bubble and subsequent crash, the passage of Proposition 209 in 1996, ended affirmative action in admissions to the California university system, including the University of California, the state’s flagship university and one of the most distinguished universities in the world. The California university system had to come up with a different way to diversify its student body. It did. But the long-term effects have included a dramatic drop in the number of Latino and African American students. In 2006, marking the ten-year anniversary of the passage of Proposition 209, “The Nation” magazine noted that the incoming University of California class had only 100 African Americans out of 4,802 new students. Latinos were not mentioned in the report at all. I guess we were statistically “insignificant,” which is to say that the number of Latino students that matriculated into the California university system in 2006 was so small that in terms of statistical regression analysis (the number of Latino students is so far away from the median or mean of Caucasian students in the California university system), that the number of Latino students is “irrelevant.” It is as if there were no Latino students that matriculated into the California university system in 2006. 
Access to education is a major problem for the Latino community. We are running way behind the “norm.” The less education our community, in particular our children receives the greater the economic, political and class divide. As we become the largest minority in the United States, our children must be adequately educated to effectively participate in every fabric of American society from Wall Street to Main Street to the legislature to the courts to the ivy halls to medical schools to Hollywood to the White House. We cannot afford to leave any child behind.
Saturday, April 24, 2010
GOP Continues Assault on Latinos: BOYCOTT Arizona!
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A few years ago the Midwestern People of Color Legal Scholarship Conference (MWPOC) hosted its first retreat in Sedona, Arizona. It was beautiful. In addition, at around the same time, I visited the north rim of the Grand Canyon, with my entire family. Amazing!
Today, I call on everyone to BOYCOTT Arizona. I will not spend a dime in Arizona until their new anti-Latino law is repealed.
Let me explain why. It is very simple. I read the new anti-Latino law that GOP Governor Jan Brewer just signed. As an attorney and law professor who graduated law school in 1986, I would never feel free from the possibility of extended incarceration in Arizona without keeping my passport on my person 24/7. I also have a family. I would never permit anyone of my family members to go to Arizona because without their passport they cannot be assured they will not be detained.
They can keep you incarcerated until they hear back from the U.S. government. Under the Act, whenever a law enforcement officer has "reasonable suspicion" that the person "is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person. The person's immigration status shall be verified with the federal government pursuant to 8 United States code section 1373(c)." No state official may interfere with this procedure. So, as I read the Act you either file a writ of Habeas Corpus in federal court or wait for the federal government to verify your status.
I would just as soon go visit Europe, where I can forget my passport in the hotel without facing extended detention.
So, Arizonans, there is zero chance I will ever spend a dime in your state until you repeal the law that require my family and I to have our "papers" in order to avoid detention. This is a rational reaction to your ridiculous new anti-Latino law. I urge all Latinos ( all 50 million) to BOYCOTT Arizona. I also urge all other people of color to similarly BOYCOTT Arizona. Further I call on all Libertarians and others who claim to love freedom to also BOYCOTT Arizona. A threat to anyone's freedom is a threat to everyone's freedom. Or, perhaps you should consider the plight of Pastor Martin Niemöller.
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