Coming less than a month after Governor Doug Ducey’s solicitation of ideas for the “re-branding”of Arizona, federal Judge Susan R. Bolton’s recent ruling on Arizona’s 2010 immigrant-bashing law, Senate Bill 1070, reminds denizens of the Grand Canyon State why such a re-branding might be necessary.
The law itself was a neutron bomb of hate, which former state Senator Russell Pearce aimed at the brown population of Arizona.
In it, Pearce, whose moral ugliness has made him a byword for bigotry and an outcast from Arizona politics, proffered a final solution to the problem (as he saw it) of illegal immigration.
With the assistance of anti-immigrant attorney Kris Kobach, now Kansas’ secretary of state, and of the right-wing Federation for American Immigration Reform, Pearce created a law that had as its stated intent “to make attrition through enforcement the public policy of all state and local government agencies in Arizona.”
The idea of “attrition through enforcement” was to make life so horrible for individuals here illegally that they would “self-deport” back to their home countries.
In its 2012 decision on 1070, the U.S. Supreme Court threw out three sections of the law as preempted by federal statute, reaffirming the federal government’s “broad, undoubted power over immigration,” and pointing out that mere unlawful presence in this country is not a crime.
“As a general rule, it is not a crime for a removable alien to remain present in the [United States],” the high court wrote in Arizona v. United States. “If the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent.”
And yet, the Supreme Court let stand section 2(b) of 1070, which stated that for every lawful “stop, detention, or arrest” where there is reasonable suspicion to believe that the person is “unlawfully present,” a “reasonable attempt shall be made, when practicable,” to determine the person’s immigration status.
Here, the justices bought into the specious arguments of lawyers for Arizona that a no more than “reasonable attempt” might mean making a phone call to U.S. Immigration and Customs Enforcement and need not result in prolonged detention of the person.
Indeed, the Supreme Court observed: “Detaining individuals solely to verify their immigration status would raise constitutional concerns.”
Talk about threading a legal needle. For a stop to be lawful to begin with, it cannot “solely” be to verify immigration status.
The court left open the possibility of other constitutional challenges to the section once it went into effect.
It is an irony of our legal system that sometimes the most obvious realities have to be demonstrated in the rarefied atmosphere of a courtroom, with prodigious evidence and voluminous legal prose.
The American Civil Liberties Union, the National Immigration Law Center, and the Mexican American Legal Defense and Educational Fund continued to challenge 1070, winning injunctions against sections regarding harboring and human trafficking.
Bolton’s ruling in Valle Del Sol v. Whiting took the same reasoned approach as in past rulings, like when she preliminarily enjoined most of 1070 in 2010 after the federal government sued Arizona over the statute.
At the time, Bolton ruled that section 2(b) should be enjoined because it was preempted by federal law.
But since, in 2012, the Supreme Court ruled otherwise, and since, in Bolton’s opinion, the plaintiffs had not advanced new arguments or given new evidence that 2(b) has been applied in a discriminatory manner, she refused in Valle del Sol to permanently enjoin what many consider the heart of the law.
“Plaintiffs must demonstrate that state law enforcement officials will enforce the law differently for Latinos than a similarly situated person of another race or ethnicity,” Bolton wrote.
She also called the law “facially neutral.”
Which may be correct, as long as your face is not brown.
Given the context of Arizona, its border with Mexico, and the migration of people from various Central American nations through that border, Bolton’s requirement is laughable.
I mean, can anyone seriously argue that any white person in this state will be treated to the same scrutiny as a Latino driver or pedestrian, particularly if that driver or pedestrian doesn’t have an Arizona driver’s license on them, or one of the other acceptable IDs spelled out in the law?
True, as the Supreme Court has made clear, it would be unconstitutional for a cop to stop a brown person just to determine whether he or she is in the country legally.
That said, in the ACLU’s big racial-profiling case against Sheriff Joe Arpaio, Melendres v. Arpaio, MCSO deputies testified during the trial that finding reasonable suspicion to pull over a car on a moving violation merely takes a couple of minutes of bird-dogging the vehicle.
Such pretextual stops are illegal under the Constitution, but look what it took to prove that Arpaio’s agency was using them to engage in widespread racial profiling of Latinos and force it to end the practice: seven-plus years of litigation, more than $50 million in expenses to county taxpayers (so far), and the sheriff’s admitted civil contempt of court.
Also, the plaintiffs in Valle del Sol cited evidence that 30 percent of Arizona’s population is Latino, that 65 percent of Arizona’s foreign-born population is from Latin America, and that 90 percent of undocumented aliens in Arizona are from Mexico.
Add to this the obvious discriminatory intent of the law’s author, Pearce, a man who mentored the murderous neo-Nazi J.T. Ready, who made a practice of lying about his Mormon faith’s official stance on immigration, and who was recalled from his state Senate seat by coalition of moderate Mormon Republicans and Mexican-Americans angered over the stain 1070 left on their state.
What else is there to prove?
Bolton shot down the plaintiffs’ attempts to enjoin parts of 1070 that require local law enforcement to check the immigration status of those arrested and allow them to transport illegal aliens to ICE.
But in a win for the plaintiffs, she permanently enjoined a section that would have restricted day laborers.
None of Bolton’s decision was surprising, nor did it change the status quo.
For now, 1070 remains on Arizona’s body politic like a grotesque misshapen mole that resembles Pearce’s truculent visage.
Perhaps some court or the will of an ever-browning electorate will slice it off entirely someday.
On the whole, the pushback to 1070 by the courts, Latinos, and Latino-friendly politicians has been relatively positive though, as Bolton’s decision shows, checkered in its triumphs.
Indeed, the rise of Donald Trump as a political force has revivified nativism nationally.
The billionaire suggests, as Pearce once did, an end to birthright citizenship as enshrined in the 14th Amendment.
And he goes a step further than the “self-deportation” that Pearce’s 1070 meant to ensure.
Trump wants to outright deport 12 million undocumented people.
Still, if Latinos and their allies use Trump to mobilize, register, and get their people to the polls in 2016, a national consensus could end nativism’s stranglehold on the Republicans in Congress and bring about comprehensive immigration reform.
As for 1070, until it’s wiped from the books, may I offer this tagline for Governor Ducey’s rebranding campaign:
“Arizona, It’s Apartheid Lite.”
Posted with permission from Phoenix New Times.