Posted by: Jeff | April 21, 2010

Legalizing Immigration Policy

The state of Arizona is set to pass and sign into law an immigration reform bill that would empower local law enforcement officials to check on the legality of residence of any person they encounter.  It would also criminalize illegal immigration, such that those in the country without legal permit would be charged with trespass and subject to prosecution as well as deportation.  At face value, this is an understandable response to a mounting immigration problem created by porous borders, an expanding drug trade, and increasing animosity between native Arizonians and their new neighbors from the south.

It’s an emotional issue, which in part explains an emotional response.  But below the surface, this law has some very major flaws that erode civil liberties and damage race relations.  The answer to the problem is not to lose sight of core principles or exacerbate animosities.

The most damaging provision of the new law would require police officers to investigate the citizenship or residency of every individual they encounter – from suspected criminals to informants, witnesses to drivers during routine traffic stops.  It allows law enforcement to set up checkpoints where individuals must provide documentation to satisfy inquiries about legality.

Obviously, this is highly problematic.  As Matt Yglesias points out:

This sounds like a declaration of open war on all Hispanic persons within the state boundaries. Suppose I find myself in Phoenix for work and I get robbed. I just might call the police to report it. Then all of a sudden we have a Phoenix police officer “encountering” some dude with a Spanish name and he needs to attempt to determine my immigration status. Well, I don’t make a habit of taking my passport with me. So what am I supposed to do? Call up CAP and have someone fax over my W-9? If it’s after business hours on the east coast am I going to be detained overnight.

Under the framework of the new law, such detention could indeed be legal until sufficient documentation is provided.  I’m no constitutional scholar, but it certainly seems that this could result in several high profile habeas corpus cases – ones that would cost the state of Arizona a lot of money and likely result in an eventual ruling of unconstitutionality.

It represents a pretty egregious violation of civil rights in favor of racial profiling.  Advocates claim that all individuals will be subject to this basic check, but the shape of the political debate and actions of some law enforcement officials under current immigration laws clearly indicate that the provision will be abused to target specifically persons of Hispanic descent, whether legal or otherwise.  According to the Pew Hispanic Center, 30% of Arizona’s legal residents are of Hispanic origin.  Clearly this presents a monumental problem in terms of police resources and also treatment of nearly 2 million of Arizona’s legal citizens.

This begs a greater question about civil liberties, and one that conservatives and progressives have debated for some time in the wake of 9/11 – whether racial profiling represents a fundamental violation of constitutional civil liberties, or whether law-abiding citizens have anything to fear from such profiling.

Conor Friedersdorf, a conservative journalist who frequently writes policy critiques, argues that it is “imprudent to fight illegal immigration with laws targeting otherwise law-abiding residents with arrest”:

Put simply, these people are going to be routinely asked by police for proof of citizenship, especially in a state where racial profiling is already a problem. Witness Maricopa County, Arizona, where the odious Sheriff Joe Arapaio presides over a police force sued multiple times for targeting Hispanics, many of them American born—and where police have already been sanctioned by a judge for destroying evidence related to a profiling lawsuit. [….] A state law that can only result in the mistreatment of Hispanic Americans is […] an unjustifiable response.

I agree. Friedersdorf puts forth an alternative proposal as a compromise solution, suggesting that such documentation checks are conducted by corrections facilities processing individuals who commit crimes in the United States.  This solves the problem of orienting local policy toward immigration enforcement, and it also eliminates that prospect of harassment of law-abiding Hispanic Americans.

However, I do see a valid concern that I suspect most conservatives share: by checking only the legal status of those that have already committed a crime, Arizona would essentially be waiting for crimes to occur before taking action.  I’m not sure that helps prevent anything but repeat offenses, which the judicial system supposedly works to prevent anyhow.

But Friedersdorf’s proposal is certainly a more humane alternative to the impending Arizona law, and at least acknowledges the fact that there are many legal residents of Hispanic descent as well as many illegal immigrants who seek asylum for economic reasons and do not pose an existential threat to American values or lives.

This is an explosive policy issue that demands an honest attempt at solving on the national level.  Only national policy will make an impact on the problems posed by illegal immigration – by abdicating this responsibility at the federal level, states will increasingly take immigration enforcement into their own hands, and I worry that bad pieces of legislation like this that run counter to American principles and actual policy objectives will become increasingly common.



  1. Immigration is a federal issue, so states can’t do anything about it by themselves. It ain’t gonna work.

    Also, Kudos on citing Pew Hispanic.

  2. Last year, the Social Security Administration (SSA) ran the numbers at my request. Here’s what they found: For a single 25-year old male with very low earnings, today’s value of his and his employer’s contributions to the Trust Fund will fall $15,596 short of the value of the Social Security retirement benefits he will eventually receive. A single female will receive $20,936 more in benefits than she pays into Social Security. If the immigrant is married but the sole wage-earner, the couple will eventually drain the Trust Fund by $52,460; if the immigrant is married to another very low earner, the drain on the trust fund will be $39,037. The legalization of one million illegal immigrant couples who work for very low wages would be a $101 billion blow to taxpayers. And amnesty for all illegal immigrants would multiply this figure many times!

    When it comes to taxes, amnesty supporters like to say that illegal immigrants will pay their “fair share” of taxes after being granted amnesty. This is deceptive.

    Low-skilled workers often pay no taxes and receive a check from the Internal Revenue Service in the form of the Earned Income Tax Credit. Putting illegal immigrants on the IRS rolls will actually cost the federal government money.

    Since most illegal immigrants have less than a high school education and have well below average incomes, even those illegal immigrants who pay taxes pay far less in taxes than they (and their families) consume in taxpayer-supported benefits. Robert Rector of the Heritage Foundation found that the average immigrant household headed by an immigrant without a high school degree receives over $19,000 more in total government benefits each year than it pays in federal, state and local taxes!

    But the impact goes far beyond these direct costs.

    There are nearly 16 million Americans out of work, and about 8 million jobs are held by illegal immigrants. By simply enforcing immigration laws already on the books, we could create millions of job opportunities for American citizens and legal immigrants who played by the rules and entered the U.S. the right way.

    Instead, the Obama administration has all but abandoned worksite enforcement efforts. Administrative arrests are down 87 percent; criminal arrests of employees are down 83 percent; criminal arrests of employers are down 73 percent; the number of criminal indictments are down 86 percent; and the number of criminal convictions is down 83 percent since 2008. This insults unemployed and underemployed American workers who need the jobs held by illegal immigrants.

    The hit is on your wallet! Illegal immigrants are a fiscal drain on American taxpayers. And the Obama administration’s policies only make it worse.

  3. […] I keep coming back to this immigration law in Arizona because I think it is not only fundamentally wrong and unconstitutional, but I also believe that it fails to address the underlying problems that cause the emotional anxiety many are feeling about the issue. […]

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