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Across the Divide

News & Features | November 22, 2010

Events in recent weeks have given new perspective on Arizona’s controversial immigration law, known as SB 1070. The law sparked a national discourse over immigration back in April as supporters hailed a victory for the rule of law while opponents claimed it would lead to racial profiling and increased racial tensions. The heated argument over the law has become increasingly ideological as both sides seek to center the debate on the issue of immigration itself.

Among the most significant provisions of the law is a new requirement that police detain people they “reasonably suspect” of being in the country illegally. This means that anytime a police officer interacts with someone, whether it be pulling someone over for a traffic violation or stopping someone at a security checkpoint, the officer can check the person’s immigration status and report him or her to Border Patrol if necessary. It does not mean, however, that police can stop people merely for “looking” like illegal immigrants. The law provides no clear explanation, however, of what might warrant “reasonable suspicion” of illegal immigrant status, leaving it to police officers’ discretion. The danger is that a police officer has the power to pull over Hispanic-looking people based on some other pretext and then question their legal status. Once detained, the law mandates that individuals prove they are in the country legally and makes it a crime to not carry the proper immigration papers at all times. Overall, it imposes an unprecedented burden on aliens in the country that some, including Cardinal Roger M. Mahoney of Los Angeles, liken to “Nazism.” A new report found that 100,000 Hispanics have left Arizona since the beginning of the year, possibly because of the law along with poor economic conditions.

The Obama administration filed a lawsuit against Arizona in early July, arguing that immigration is solely in the purview of the federal government and that laws like the one in Arizona would create an unwieldy patchwork of different laws in different states. Arizona Governor Jan Brewer, who was an enthusiastic supporter of the law, contends that the federal government is not doing enough to secure the border and that her state was forced to act out of concern for the public safety. Brewer was elected to a full term as governor on November 2 by a wide margin, riding a wave of support in the state for the immigration law. Indeed, national opinion polls show that the majority of Americans support the law and oppose the administration’s lawsuit.

The courts have seen things differently. District Judge Susan Bolton issued an injunction against sections of the law less than a day before it was scheduled to take effect in late July. In her decision, Bolton wrote that “there is a substantial likelihood that officers will wrongfully arrest legal resident aliens,” largely siding with the Obama administration. Specifically, she invalidated provisions that forced police to check the immigration status of suspected aliens and allowed police to detain these persons until they could prove they were in the country legally.

Arizona appealed the decision, and the case is now in front of the 9th US Circuit Court of Appeals. The court indicated recently that it would throw out the provision that makes it a state crime to not carry immigration papers, but made it clear that the police did have the authority to demand them. Arizona’s lawyer, John Bouma, said that this would effectively make the law toothless, since police couldn’t detain those suspected of being in the country illegally for any crime. The court also said that it would not approve of the section that makes it a crime for illegal immigrants to seek work, since a prior ruling stated that the responsibility rests only on the employers that hire illegal immigrants.

The courts cleared several parts of the law, including a requirement that all cities and municipalities fully cooperate with federal immigration officials. This came in response to “sanctuary” policies certain cities adopted making it illegal for officers to ask witnesses or victims about their legal status. Other parts of the law make it easier for police to pull over suspected smugglers and outlaw stopping a vehicle in traffic to pick up day laborers. It is now a crime to encourage illegal immigration or to transport, shield, or harbor illegal aliens knowingly, although this only applies if it is during the commission of another criminal offense. While these parts of the law have been in effect since July, no arrests or prosecutions based on its statutes have occurred since then. Law enforcement seems to be waiting it out while the legal battle goes on. Governor Brewer has publicly said that she will take the law all the way to the Supreme Court if necessary, meaning it could still be months until the law’s final status is determined.

Adding yet another element of controversy to the law, a recent investigation by NPR found that the driving force behind the bill was the Corrections Corporation of America (CCA), the largest private prison company in the country, which saw arresting more immigrants as a good way to expand its market. The CCA worked closely with the sponsor of the bill, Republican State Senator Russel Pearce, and was even allowed to choose the wording. Other legislators jumped on the bandwagon; the bill had an unusually high 36 co-sponsors, 30 of whom received donations from prison lobbyists and companies. These revelations naturally raise concerns about the role of business in shaping the legislative agenda to their own ends. NPR’s report noted that nothing done was technically illegal, even though the prison industry was essentially allowed to write the bill and pay state legislators for their support. Meanwhile, several other states including Texas and Florida are considering similar legislation. All this means that SB 1070 will continue to cause headlines and shape the political landscape, hinting at the perennial American fixation on defining identity in a nation of immigrants.

Filled with so many contentious elements, the debate over the law will likely rage on for months. Whatever form the final law may take, the feelings of violation and distrust it has sparked will linger indefinitely.