S.B. 1070

  • October 22, 2015
    BookTalk
    The New Immigration Federalism
    By: 
    Pratheepan Gulasekaram and S. Karthick Ramakrishnan

    by Pratheepan Gulasekaram and S. Karthick Ramakrishnan. Gulasekaram is an Associate Professor of Law at Santa Clara Law, and Ramakrishnan is a Professor of Public Policy and Political Science and Association Dean of the School of Public Policy at the University of California, Riverside.

    The years after 9/11 have witnessed a period of great ferment and transformation with respect to immigration and federalism. This era, characterized by an extended federal legislative gridlock on immigration, has been one of unprecedented levels of state and local policymaking on the subject. The past several years have witnessed a flurry of restrictionist policies, like Arizona’s SB 1070 and its copycats, employer verification statutes, and local agreements with the federal government to help enforce immigration laws. On the integrationist side, states and localities have implemented policies to resist their complicity in federal immigration enforcement, provide education benefits, and allow access to a variety of social services.

    What are the causes of this development, in terms of background factors and more proximate causes? And, what are the consequences of these new developments in immigration federalism, particularly with respect to our understanding of the role of states and localities in our constitutional order? Using empirical data and a multi-disciplinary approach, our book answers these central questions and provides several key insights for the future development of state and local policy and federal immigration reform.

    We first situate the current flurry of subfederal legislation in the larger historical context of immigration federalism in the United States, showing how Congress and the Supreme Court have played key roles in particular historical moments, to either permit or limit state involvement in regulating immigration. Indeed, we make the case that this contemporary period represents an emerging phase in the still-evolving “third era” of immigration federalism that began in 1965, an era that is distinct from the first century of immigration law that was state-centric, and the second century of immigration law where the federal government became dominant. In the past fifty years, Congress waded explicitly into defining what states can do with respect to regulating the welfare and livelihood of immigrants, and states attempted significant controls over the undocumented population. We end our historical overview with the period immediately preceding September 11, 2001, discussing in detail California’s Proposition 187 in 1994, the predecessor to the several state and local restrictive efforts that dominated headlines over the past ten years.

    Having provided this context, we then explain the various types of laws that states and localities have passed during this new period of immigration federalism. In Chapter 3, we provide a description and classification of key types of restrictionist laws at the state and local level that were dominant from 2004 through 2012, such as enforcement laws, employer sanctions provisions, and rental ordinances aimed at undocumented immigrants. We then examine the causes for this spike in restrictionist legislation, and ask why it was occurring in some places but not in others. Using original empirical analysis, we reject the conventional narrative about these restrictionist laws, which popularly held that a combination of demographic pressures from new patterns of unauthorized migration, combined with federal inaction, created irresistible pressure for states and localities to act. Our empirical analysis not only refutes this generally-accepted (but mistaken) explanation, but in doing so reveals the most salient factor explaining the proliferation of restrictionist laws across selected jurisdictions:  political partisanship.  Put simply, we show that demography is not destiny, but politics may be.

  • April 27, 2012

    by Jeremy Leaming

    For what feels like decades, reporters, pundits, and ideologues, mostly on the right, but some on the left, have lauded Supreme Court Justice Antonin Scalia for his wit, pointed oral argument questioning and allegedly brilliant writing. But those plaudits, in light of the justice’s performances during oral argument in cases challenging health care reform and Arizona’s racial profiling law, are wobbly at best, bordering on delusional.

    In reality Scalia increasingly has difficulty, as The Washington Post’s Dana Milbank recently noted, containing his rabid partisanship. It’s unbecoming. During the Affordable Care Act oral argument it appeared, at times, that his only preparation involved reading right-wing blogs railing about the slippery slope to regulations mandating purchases of broccoli and gym memberships. At oral argument in Arizona v. U.S., regarding challenges to several portions of the state’s anti-immigrant law, Scalia “left no doubt from the start that he was a champion of the Arizona crackdown and that he would verbally lacerate anybody who felt otherwise,” Mibank wrote.

    Milbank continued, “Scalia’s tart tongue has been a fixture on the bench for years, but as the justices venture this year into highly political areas such as health-care reform and immigration, the divisive and pugilistic style of the senior associate justice is very much defining the public image of the Roberts Court.”

    And it’s not a flattering image. Not only does Scalia come off as a ringleader of right-wing hacks in robes, he increasingly comes off as clueless or heartless. During the health care oral argument, questions from Scalia and some of the other right-wing justices prompted a string of commentators to question whether the justices understood the health care insurance market.

  • April 26, 2012
    Guest Post

    By Gabriel J. Chin and Marc L. Miller. Chin is a Professor of Law at the University of California, Davis, School of Law, and Miller is Vice Dean and Bilby Professor of Law at the University of Arizona, James E. Rogers College of Law. SeeSB1070 in the Supreme Court,” their pre-oral argument analysis for ACSblog.


    The argument in the SB1070 case went 20 minutes over its scheduled hour.  Most of the justices' questions addressed Section 2, which requires local police to investigate the immigration status of anyone stopped by the police who they suspected of being undocumented. 

    Justices Kennedy and Scalia each asked the fundamental question of whether “a state must accept within its borders a person who is illegally present under federal law.” Paul Clement answered no, frankly claiming for the states the powers of deportation and border control.

    Justice Scalia agreed. 

    This question is at the heart of the case. All provisions of SB1070 are roundabout ways of forcing undocumented aliens to leave.  If Arizona has direct regulatory authority over illegal immigration, they need not operate indirectly; Arizona should just pass a law requiring the undocumented to leave, punishing them if they refuse.

    Arizona did not do this because it doubts it has that power.  Such a claim would be at odds with the traditional approach, as represented, for example, by Chief Justice Burger, joined by Justices White, Rehnquist & O’Connor dissenting in Plyler v. Doe,who wrote: “A state has no power to prevent unlawful immigration, and no power to deport illegal aliens; those powers are reserved exclusively to Congress and the Executive.”

    But if states do not have the power to regulate directly, then, as Mr. Clement recognized when answering this question, their claim to be able to do so indirectly is undermined.

    In the modern electronic glow that seeks to cast major cases into six word headlines and sound bites, many commentators have observed that the justices supported Section 2. It was common ground among the justices and counsel that an officer acting on her own (rather than by statutory mandate) may question a suspect about immigration status, at least so long as it does not prolong a detention.

    But looking at the exchanges between the Justices and the advocates, a more nuanced picture emerges.

  • April 6, 2012

    by Jeremy Leaming

    SEIU, which represents millions of workers nationwide and more than 100,000 in Alabama, has lodged a complaint with the International Labor Organization (ILO) of the United Nations urging it to press the federal government to move on immigration reform.

    SEIU and its affiliate, the Southern Regional Joint Board of Workers United, state in their complaint before the U.N. that Alabama’s anti-immigrant law, H.B. 56, “denies fundamental civil rights to immigrants and minorities and impacts trade union activities between and among union members, inhibiting freedom of association ….”

    In a press statement announcing the complaint, SEIU says, “Only federal legislative reform can stop the proliferation of laws like Alabama’s H.B. 56 that penalize unauthorized immigrants who apply for jobs or work; fine anyone who transports or harbors an undocumented immigrant; and prevent courts from enforcing contracts that involve a person without legal status …. Such provisions jeopardize the ability of workers to form and join trade unions and to bargain collectively.”

    SEIU’s complaint before the U.N. is available here.

    Authors of Alabama’s anti-immigrant law, which The New York Times has dubbed the harshest in the nation, are pushing some revisions to it that aides to the state’s governor claim will significantly improve its treatment of undocumented immigrants. (The federal government has challenged in court several provisions of the law, saying they interfere with the government’s effort to create one national law on immigration. In March, a federal appeals court blocked some of the law’s provisions.)

    Brian Lyman, reporting for the Montgomery Advertiser, says the proposed changes to H.B. 56, sponsored by state Rep. Micky Hammon, “toughen some provisions while significantly scaling back others.”

    For example, Lyman notes, a proposed revision would allegedly soften the law’s controversial section requiring public school officials to check and report on the immigration status of students. A proposed revision would require “state schools superintendent to file an annual report on the fiscal impact of undocumented” immigrants on the school system.    

    Ala. Gov. Robert Bentley, in a press statement, however, said the proposed revisions would not undercut the “essence of the law …. Anyone living and working in Alabama must be here legally.”

    Civil rights and other public interest groups have argued that H.B. 56, and other harsh immigration laws, such as Arizona’s S.B. 1070, allow authorities to engage in racial profiling and discrimination against people based on how they look and speak. Those groups, moreover, point out that the individual state laws can create a confusing patchwork of laws that endanger constitutional freedoms.

  • February 3, 2012

    by Jeremy Leaming

    Alabama’s harsh anti-immigrant law is already costing the state billions in lost revenue, according to a study by Samuel N. Addy, an economist at the University of Alabama.

    Reporting for Politico, MJ Lee notes that Addy’s report, “determined that the estimated 40,000 to 80,000 unauthorized immigrant workers fleeing the state have resulted in 70,000 to 140,000 jobs lost and $2.3 to $10.8 billion reduction in Alabama’s GDP annually.” The law moreover, is expected to cost the state “$56.7 to $264.5 million in reduced state income and sale tax collections, as well as $20 to $93.1 million less in local sales tax collections ….”

    Addy’s study centers largely on the law’s harm to the state’s overall economy, concluding that because it has already spurred scores of undocumented people to flee the state it has negatively impacted the state’s economic landscape. The professor says the “income generated by these people [undocumented workers fleeing the state] and their spending will decline. That results in a shrinking of the state economy and will be seen in lower economic output, personal income, fewer jobs, and lower tax revenues than would otherwise have been.”

    In coming to this conclusion about the law’s impact on the state’s economy, Addy, perhaps curiously, asserts that nobody “can fault the intent of the law” and that the law is “well-intentioned,” because it is aimed at tackling “illegal immigration.” He also highlights some “potential economic benefits of the law,” such as “saving funds used to provide public benefits to illegal immigrants; increased safety for citizens and legal residents; more business, employment, and education opportunities; and ensuring the integrity of various governmental programs and services.”

    Regardless of the law’s intent, its sweep has provoked protests throughout the state and some withering national scrutiny. Shortly after the law’s enactment, The New York Times opined that it was “the country’s cruelest, most unforgiving immigration law.”