Strange Neighbors: The Role of States in Immigration Policy

Introduction

>> 1 Introduction Gabriel J. Chin and Carissa Byrne Hessick In 2010, Arizona ignited a national controversy over state regulation of immigration. It did so by enacting S.B. 1070, a statute through which Arizona tried to encourage undocumented immigrants to “selfdeport ”—i.e., voluntarily leave the state—by creating an inhospitable environment.1 While S.B. 1070 captured the nation’s attention, it was not the first state effort, or indeed the first effort in Arizona, to influence immigration policy or enforcement. In the five years leading up to S.B. 1070, various state legislatures introduced thousands of immigration bills and enacted hundreds.2 Arizona in particular had previously enacted several immigration-related measures, including an initiative requiring that undocumented noncitizens arrested for crimes be held without bail, a law denying them state benefits, and a law revoking the business licenses of Arizona employers who hired undocumented workers.3 In addition to drawing public attention to the increasingly active role of states in immigration, S.B. 1070 also spawned copycat legislation in a number of other states. Alabama, Georgia, Indiana, South Carolina, and Utah enacted similar laws in 2011. And a number of states introduced other omnibus immigration enforcement bills in 2012.4 These state laws seek to restrict the number of undocumented immigrants in their states. Because direct efforts to regulate immigration have been deemed unconstitutional,5 the states seek to accomplish this restriction indirectly, such as by making it more difficult to obtain employment or by creating state crimes for failure to comply with federal immigration requirements. Some state efforts also appear designed to place pressure on the federal government to increase immigration enforcement efforts by, for example, increasing the number of requests for immigration 2 > 3 The Department of Justice took the unusual step of filing a lawsuit alleging civil rights violations against Arizona sheriff Joe Arpaio after negotiations between the DOJ and the Sheriff’s Office broke down. And the ACLU prevailed in a similar federal lawsuit in the spring of 2013; a federal judge concluded that the Sheriff’s Office had engaged in racial profiling, a finding that will undoubtedly be revisited on appeal. Interestingly , although fears of racial profiling prompted significant public concern in the debate over Arizona’s S.B. 1070, that issue was not raised by the federal government in the litigation that made it to the Supreme Court. Presumably, the administration did not want to raise the issue, given that it has actively defended its own practice of using race as a factor in immigration enforcement.11 In addition to these legal and political changes, U.S. immigration has also undergone dramatic demographic changes. Recent demographic studies show that migration from Mexico to the United States has essentially ceased.12 This book traces the significant and visible role that states have assumed in immigration policy and enforcement. It also presents a first look at the way the Supreme Court responded to that state involvement in its 2012 decision in Arizona v. United States. While it is always difficult to predict what the Supreme Court will do, it is possible that this case may represent only the beginning of the Court’s involvement in the complicated and complicating role the states now play in immigration policy and enforcement. Before previewing the contents of the book, we first provide a brief summary of the Supreme Court’s recent opinion. * * * Arizona v. United States,13 which tested the constitutionality of Arizona’s S.B.1070, is unquestionably the most important immigration decision in decades.14 The Supreme Court had upheld a different Arizona law, the Legal Arizona Workers Act, which punished Arizona employers for hiring undocumented workers, in 2011, but that case was less significant because federal law explicitly authorized state regulation, and the only question was whether Arizona’s law went too far.15 These laws were part of an explicit policy to make Arizona less hospitable to undocumented workers so they would self-deport. As stated in Section 1 of S.B.1070, 4 > 5 although she allowed others to stand, and the United States did not appeal. The U.S. Court of Appeals for the Ninth Circuit affirmed. All three judges on the panel agreed that Sections 3 and 5(C) were void, but one judge, Carlos Bea, contended that Sections 2 and 6 were valid. One measure of the significance of the case is the amicus curiae briefs it attracted: some states, members of Congress and state legislatures , current and...