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General Musings

Playing Devil’s Advocate

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There is no good way to reform immigration policy, so let’s lay that point out right away.

Let us also agree that this law and an “open borders” policy do not mix, and anyone that is halfway reasonable should see this as a piece of codified xenophobia which clashes mightily with the federal law on the subject. It was good to see most of it get wiped out by the Supremes.

This blog is against Arizona’s SB 1070 immigration law more or less on principal.

We also believe that no one should be out there doing what John Boehner calls “spiking the football” because of the Supreme Court’s decision, but that’s what everyone is doing. And not just in a positive way.

There’s the usual band of pundits claiming that this was a victory for federalism, liberalism, conservatism, tea-party-borderline-personality-disorder-ism, etc. And then there are the people out there, despite getting their little taste of victory, that are wallowing in the feeling that the ruling wasn’t enough. Take this editorial written by Ali Noorani of the National Immigration Forum.

Ms. Noorani’s point is that this ruling is a disaster because leaving the part of the law requiring law enforcement to verify immigration status of a suspect will lead to profiling… even though racial profiling was not an issue raised by the Department of Justice.

I am going to disagree.

For what Ms. Noorani is saying to be true she presupposes that police will go arrest people in order to check their immigartion status. That’s wrong because, frankly, there was a part of the law, specifically Section 6 of SB 1070, that more or less required that the police racially profile (and allowed them to arrest people for not being white), and that part of the law was summarily eliminated by the Supreme Court. 

The part that is left over is one which requires the police or other law enforcement to check a person’s immigration status after they have been lawfully detained for another valid reason. For example, if someone is arrested after, say, a drunken bar fight, the police can call Immigration and Customs Enforcement (ICE) while the person is sleeping it off. Granted that it does not prolong this person’s time in the drunk tank then it does not actually impinge on the person’s rights to have his or her immigration status confirmed.

Illegal immigrants that are arrested for felonies will be tried, required to serve their sentence, and then deported. That exists already. So, really, Section 6 is an extension of that legal tenant. And the court is right, that section can fesibly be implemented so as to not run afoul of federal law. So where’s the tragedy?

Let’s take off the Devil’s Advocate Cap now.

The tragedy is that most people that come to the U.S. work very hard to do so, and to do it properly.

The majority of immigrants are in the U.S. legally, though, if you believe Tolerance.org, a shockingly high number are one form of illegal or another. However, again according to Tolerance, almost half of those here illegally were at one point or another totally legal. It only takes one database error or misread report for a person in the U.S. legally to be put on the humiliating path to deportation.

Moreover, there is the potential for lots of abuse of this system. While the police forces in Arizona are allegedly receiving specialized training, there is an absolute certainy that an officer somewhere will decide he can detain alleged immigrants because of the remaining section of the law, and if they resisted, they may then be subject to a “legitimate” check of their status.

Fortunately, the ACLU and various immigration advocacy groups are waiting to pounce on any abuses with a eye toward challenging the law on civil rights grounds, rather than your standard federal preemption.

So, sure, the court could have gone and totally eliminated SB 1070. To do that, though, would have required a level of activisim that is often openly fantasized about in the Fox News studios. Instead, the court stuck to the issues presented and came out with a reasonable response. It is tragic that we have gotten to a point where racist and xenophobic laws are being put back on the books (though surely some were never removed), but it is heartening to see that the Supreme Court can still see straight enough to get rid of the obvious ones, and to do it in a very reasonable way.

There are also strong indications that the rest of SB1070 could not survive a challenge rooted in a civil rights claim, rather than a federal preemption one.

The point is that, while it is unglamorous and perhaps isn’t enough, it was the right call and the law should be finished off shortly after it goes into effect for real.

So, cheer up and stop spiking that football. Besides, everyone needs to save their energy for Thursday when “Obamacare” comes up on the Supreme Court’s docket.

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About E.C.

Corporate and regulatory attorney. Also experienced in advocacy for the mentally disabled and minor litigation matters. Not currently practicing, but maintaining the blog to keep my research and writing skills sharp. Splitting time between Connecticut and Massachusetts.

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