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More States Expected to Exert Control Regarding Illegal Immigration Problems

by Slowik & Robinson, LLC

Immigrantings_Immgration ReformWith a national election just around the corner and a general populace perceiving the federal government as lax in its enforcement of immigration laws, many of us expect continued controversy regarding the issue of undocumented immigrants and the growing trend of states seeking to control immigration within their borders.

Arizona appears to have started this trend with its SB 1070, passed by the state legislature in early 2010.  In the wake of Arizona’s passage, two dozen copycat bills were introduced in state legislatures across the U.S., with five passing in Alabama, Georgia, Indiana, South Carolina and Utah.

It’s likely that most, if not all, of these new laws will eventually end up before the U.S. Supreme Court, as was recently the case with the Arizona statute. Of the four provisions within that particular law–requiring state law enforcement to make a “reasonable attempt” to determine the immigration status of any person stopped, detained, or arrested on some other legitimate basis if “reasonable suspicion” exists that the person is an alien and is unlawfully present in the U.S.; criminalizing the act of not carrying papers by immigrants; allowing for warrant-less arrest in some situations; and forbidding undocumented immigrants from working in Arizona–only the first was upheld by the Court.

There is no doubt that some states have been tasked with a difficult role in confronting illegal immigration.  In difficult economic times, governments are inclined to target those populations who appear to “take” more than they “give,” i.e., undocumented immigrants, to “legislate” away their problems with immigrants.  This is nothing new for the U.S.–the states are simply taking over where the federal government has legislated in the past.

In its earliest days, U.S.–preRevolutionary War–immigration restrictions were limited.  Individuals who were likely to become public charges, or who were criminals, were denied entry to the U.S.  But generally, immigration was largely encouraged–the fledgling U.S. needed bodies for labor.  Discontent with immigration began in the 1820s, with influxes of immigrants from Ireland and Germany.  The first immigration legislation passed by the federal government, the Immigration Act of 1875, was racially motivated.  That Act barred prostitutes and convicts from admission to the U.S.  But it was also aimed at the Chinese, who were building a presence in the U.S.  The Act prohibited importation of Chinese laborers who did not voluntarily consent to come work in the U.S.

More significantly, it barred the importation of women for the purposes of prostitution.  The unstated goal of the Act, however, was to prevent single Chinese women from coming to the U.S.  The 14th Amendment had established that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” By barring single Chinese women from entering the U.S., what the Act really did was discourage Chinese men from marrying and reproducing, which would have created non-white U.S. citizens.

1882 was a banner year for anti-immigrant policy. Congress passed both the Chinese Exclusion Act, which excluded Chinese labor from immigrating to the U.S. for 10 years, as well as the Immigration Act of 1882, which imposed a tax on foreigners entering at U.S. ports.  Anti-Asian sentiment continued throughout much of the early 1900s, with the passage of California’s Alien Land Law, and the Immigration Act of 1917.  But Congress had attention to spare for other immigrants.  The Emergency Quota Act of 1921 was aimed at curbing immigration from Southern and Eastern Europe, with a 1924 Immigration Act targeting both Asians and Western Europeans (numbers for the former were limited due to U.S. naturalization requirements while numbers for the latter were held to a strict quota system).  It was not until 1943, with the passage of the Chinese Exclusion Repeal Act of 1943 (“Magnuson Act”), which extended naturalization law to cover Chinese immigrants and ended their exclusion, and the Immigration and Nationality Act of 1952, which ended racial restrictions on immigration while still maintaining the 1924 quota system–that immigration law began to be marginally less racially motivated.  This would remain the case, at least on the federal level, for some time.  But as stated earlier, the states were happy to move into the apparent void left by the federal government.

In 1987, California voters passed “Proposition 187,” a state referendum mandating laws against the use of false immigration documents and cutting off state funding for public social services, publicly funded health care, and public education–including elementary and secondary education–for undocumented immigrants. Teachers and health workers would be required to turn in students and parents suspected of being undocumented. Federal courts struck down parts of Proposition 187, including parts that violated an earlier Supreme Court decision (Plyler v. Doe) regarding the provision of public school education to the children of undocumented workers.

Only seven states–Alaska, Connecticut, Delaware, New Hampshire, Ohio, Wisconsin, and Wyoming–failed to pass anti-immigration laws in 2010 and 2011. Most states passed anywhere from one to six such bills–on topics from driver’s license eligibility to the mandatory use of the program E-Verify–while some passed eleven or more. Including Arizona’s SB 1070, 36 states considered wide-ranging anti-immigration laws.  Clearly, this is not an issue that will simply go away.

In 1990, a few years after leaving office, President Reagan recalled the contents of a letter he had once received.  The author of that letter had noted, “You can go to live in France, but you can’t become a Frenchman. You can go to live in Germany or Italy, but you can’t become a German or an Italian.” The writer continued on through Turkey, Greece, Japan and other countries, observing that “anyone from any corner of the world can come to live in the United States and become an American.”

The Rant

While we admire the optimistic tone of author’s letter, the current political reality paints a different, grimmer picture. While the states are undoubtedly frustrated by current federal immigration law, state-by-state enactment of anti-immigrant laws is not the solution.  As history has demonstrated, laws that may seem necessary and indeed “right” when first enacted, have a way of appearing xenophobic and “wrong” in later years.  While the federal government has done much to undo many of the harms it created in passing staunch anti-immigrant laws, the presence of these laws and their part of U.S. history are still, nevertheless, both embarrassing and troubling.  Perhaps more important, these state laws will serve little purpose, other than to tie up the courts, at both the state and federal levels.  More importantly, the states need to recognize that anti-immigrant laws, done on a piecemeal, state-by-state approach, are destined to raise more problems than they solve.  The states need only to look at U.S. history to see the truth in that.

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