Arizona Legal Challenge: A Pivotal Moment for Federal Leadership on Immigration

News is spreading that the Obama Administration is considering a legal challenge to Arizona's radical new immigration law, SB1070. For those of us interested in civil rights, community safety, and the rule of law, let us hope so.
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News is spreading that the Obama Administration is considering a legal challenge to Arizona’s radical new immigration law, SB1070. For those of us interested in civil rights, community safety, and the rule of law, let us hope so.

If and when the Department of Justice announces a decision to sue the state of Arizona, most Republicans will explode with outrage, some Democrats will cower in fear, and the punditry will quickly declare the Obama Administration’s action as bad short-term politics. After all, the country wants action on illegal immigration, the Arizona law represents action, and a federal lawsuit seems to represent an attempt to stop action.

A historic moment of truth for civil rights and the Constitution

But what will be missing from the insta-rage and insta-analysis will be the following: The “show me your papers” Arizona law and the resulting litigation will go down in history as a pivotal moment for civil rights and the sovereignty of the Constitution in America. The larger issues raised in this court case, the ones that will reverberate throughout history, are as follows.

In terms of the Constitution, Arizona litigation will re-open a crucial question: who controls immigration policy, the feds or the states? Legal experts believe the constitution confers authority on Congress and the national government, limiting the states’ abilities to create an unruly patchwork of conflicting immigration policies.

Perhaps more to the point, however, the legal challenge will force us to consider whether it is right for any jurisdiction in America to place a target squarely on the backs of Latinos – most of whom are citizens and legal residents – in what amounts to a breathtaking institutionalization of racism. Does it pass constitutional muster to sacrifice the liberties of an entire ethnic group in order to pursue a policy of expelling some of its members for lacking the proper papers?

History may also ask us, why did Congress and the President allow the vacuum to exist such that odious laws such as Arizona’s could fill them, especially when a strong majority of Americans want Congress to fulfill its responsibilities and enact a comprehensive immigration reform bill that strengthens border security, turns off the magnet of illegal hiring, brings undocumented immigrants into the system and onto a path to citizenship, and reforms the legal immigration system going forward – all in the service of ending illegal immigration and restoring the rule of law to our immigration system?

Make no mistake about it; a moment of truth is upon us. History will judge kindly those who stand up for fair treatment of all Americans, regardless of skin color and accent, and our tradition of “Out of Many, One.” It will judge harshly those who stand up for a law that virtually guarantees unequal treatment of Latinos, and blows hard on the dog-whistle of “Us vs. Them” demagoguery.

President Obama, despite his unfortunate decision to put immigration reform low on the priority list for his first 18 months, is taking a principled stand at this critical time and will be judged accordingly by history. Arizona politicians? Not so much.

Arizona Republicans stand on the wrong side of history

Promptly after signing the law, Governor Jan Brewer famously told the world, “I don’t know what an illegal immigrant looks like.” Then, last week, Brewer made the ludicrous statement that most undocumented immigrants in Arizona are “drug mules--” a statement from which even Senator McCain, who has embraced Brewer’s foolhardy vision on immigration to appear tough in a hard-right primary, had to distance himself. To recap: Jan Brewer doesn’t know an “illegal immigrant” when she sees one, but she knows that they are all “reasonably suspicious,” being drug runners and all. Wow.

It appears that Arizona Governor Jan Brewer is destined to join former California Governor Pete “Prop. 187” Wilson in a particularly infamous dustbin of history: politicians who targeted an entire ethnic group for unequal treatment for craven political reasons. In both cases, Brewer and Wilson decided to target the fastest growing demographic in the country: Latinos. In both cases, this will have been a fatal move as the electorate expands and punishes politicians who demonize them. Depending on how this all plays out, her place in history could even be worse: she could go down as this generation’s George “Segregation Now, Segregation Tomorrow, Segregation Forever" Wallace.

But Brewer is not alone in auditioning for a special place in history. Former champions of comprehensive reform Senators Jon Kyl (R-AZ) and John McCain (R-AZ) are deliberately choosing divisive politics over true solutions. They are the leading federal lawmakers representing Arizona; in the past they have argued passionately that the only way to secure the border is to enact comprehensive immigration reform; this year they are blocking comprehensive immigration reform because of Arizona’s Republican primary politics. It seems the J.D. Hayworth contest with McCain has led McCain and Kyl to be more interested in political security than border security. Talk about profiles in courage.

What Next: DHS reforms, DREAM Act and AgJOBS, as stepping stones to broad reform

With comprehensive reform stalled – thanks primarily to Republican obstructionism – and a lawsuit expected, what else can be done?

First, the Obama Administration should stop pandering to the insatiable enforcement-only crowd and focus its enforcement activities on “the worst of the worst” – drug and human smugglers, bad-actor employers, and those immigrants who commit serious crimes. There’s a reason big city police departments go after felons rather than jaywalkers: it’s called public safety. The current strategy of out-doing the Bush Administration on deportations, ripping families apart, picking up college students, and sweeping up those who drive with broken tail lights is bad law enforcement, bad policy, and bad politics. Go after bad guys, period.

Secondly, Democrats in Congress should take up targeted measures such as the DREAM Act and AgJOBS and right away. These two measures enjoy bipartisan support and would serve as something of a down payment on immigration reform. Yes, some Republicans will try to defeat them with poison pill amendments, but it’s time to lean into these issues, flush out those who are blocking solutions, and turn as many as 2 million immigrants into American taxpayers.

As the Los Angeles Times editorialized on behalf of the DREAM Act this past weekend, “Most of those who would be affected by the legislation were brought to the United States by their parents. Many remember no other home and, like their peers, are eager to pursue the American Dream. Such is the case of Eric Balderas, the 19-year-old Harvard University student whose status became the subject of national attention when federal authorities learned he is undocumented… His deportation has been indefinitely deferred, but in our view, he shouldn't be deported at all.” Indeed, deporting students and young people who wish to serve our country in the military makes no sense.

Meanwhile, AgJOBS legislation would address the fact that Americans remain, in the words of the United Farm Workers of America (UFW), “a nation in denial about our food supply.” As Arturo Rodriguez of UFW recently stated, “Either Congress acts to bring a solution, or we will continue to see our food production move to other countries. The United States depends on these farms and farm workers for food.”

Assuming it moves forward, an Arizona lawsuit will represent a historic stand in favor of America’s best values. But it will be only the beginning. DHS must change its ways. Congress must take up targeted measures such as DREAM Act and AgJOBS, without further delay.

In addition, the President must continue to press for the only way to once again make ours a nation of laws and a nation of immigrants – comprehensive immigration reform enacted by Congress. Yes, he’ll need some Republicans. But let’s be confident. Even they realize that being on the wrong side of history eventually means winding up on the wrong side of election results.

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