There was some good news and some bad news in this week’s Supreme Court decision on Arizona’s anti-illegal immigration law SB 1070.
The good news is that the ruling nixed three parts of the law. The bad news is that they kept what is arguably the most controversial part, namely the “papers please” provision that allows Arizona police to stop anyone they suspect of being undocumented and demand to see their papers. If you speak legalese you can read the decision in all its glory here.
At the court hearing the Obama administration avoided arguing that the law would lead to racial profiling and instead focused on the argument that states have no right to enact immigration laws because that infringes on federal authority. While the majority of the justices agreed, and blocked three quarters of the law, they found the argument unconvincing on the “papers please” provision.
Now that the court has rendered its decision let’s conduct a little thought experiment.
Imagine an Arizona police officer at a random traffic checkpoint. He’s basically a good guy, but it’s his job to enforce this law. Now let’s say that there are three Latinos in three different cars. I’m in the first car, a light-skinned, green-eyed, first generation Hispanic American. In the next car is my cousin, a recent immigrant of Afro-Cuban descent. In the last car is a Mexican-American friend of mine from Texas. His features show his mestizo ancestry but his family-members have been U.S. citizens, (except for a brief spell as Confederates), since Texas was annexed by the United States in 1845.
Just by looking at us, which person is the officer most likely to suspect of being in the U.S. illegally? Probably my Mexican-American friend who “looks Mexican.” My friend would be asked to prove he’s here legally even though his family was here long before Supreme Court Justice Antonin Scalia’s paisans or my compadres set foot on U.S. soil. That is why the law should have been ruled unconstitutional. It gives the police the right to stop anyone who is brown. That, my friends, is racial profiling and the last time I checked it was illegal.
The three conservative caballeros, Scalia, Thomas, and Alito argued the whole law should have been upheld. The dissent was written by Scalia, who basically said that federal laws don’t do enough to curb illegal immigration, so states have a right to take the law into their own hands. In fact, he spent most of his dissent lambasting President Obama’s decision to halt the deportation of undocumented young people seeking an education in the U.S. Scalia went on to criticize Congress for not creating harsher measures to curb illegal immigration.
Scalia apparently also thinks states have the right to enforce laws regarding who is allowed to travel across their borders. He alluded to laws that were enacted before the Civil War in which southern states made it illegal for free blacks to move into their states. He literally pointed out that:
“In the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. State laws not only provided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration.”
Wait a second, your argument that states have the right to enforce their own immigration restrictions is based on racist, pro-slavery, antebellum laws?
Doesn’t that sum up the entire problem with SB 1070? There is a long history of America trying to keep out people considered “undesirable.” We did it with Catholics, the Irish, the Jews, the Japanese, and even Scalia’s Italian ancestors. Today it’s Latinos.
Did those earlier immigrants from Europe have work visas or green cards? This issue goes to the question of what kind of nation we want to live in. Are we a country that welcomes immigrants as Emma Lazarus’ poem on the Statue of Liberty says, “Give me your tired, your poor, your huddled masses yearning to breathe free?” Or should we add, “… but only if you aren’t brown?”