Arizona v. U.S. & SB 1070: Baking Discrimination into Immigration Policy

June 26, 2012
Guest Post

By Margaret Hu, a visiting assistant professor at Duke Law School  

In Arizona v. U.S., the Supreme Court only upheld Section 2(B) of the highly controversial Arizona immigration law, also known as SB 1070 (Arizona's Senate Bill 1070). Three other provisions of SB 1070 were struck down. Upholding Section 2(B), however, is problematic because it preserves the provision of the bill that invites state and local law enforcement to engage in racial profiling.  

Section 2(B) is known as the "your papers please" or "show me your papers" provision of the highly controversial law. Some are reassured that the Court recognized that the constitutionality of the "show me your papers" provision of SB 1070 might be reconsidered at some point. The Court suggested the question is now whether Section 2(B) might create a problem of racial discrimination in violation of the Fourteenth Amendment's Equal Protection Clause, and other constitutional problems. In other words, Section 2(B) is not going to be thrown out now, before the law is implemented. But, if the law results in racial profiling, the Court said that this question could be dealt with in the future, when the evidence surfaces.

Unfortunately, 25 years of immigration law experimentation with "show me your papers" policies have demonstrated that the future consequences of this provision can already be predicted: Section 2(B) will likely lead to widespread discrimination. 

Those U.S. citizens and lawful immigrants who may "look or sound foreign" are likely to be the target of scrutiny, simply based upon their appearance. And because states may now perceive that they have the green light to bake "show me your papers" requirements into state immigration law, the racial profiling problems stemming from a "show me your papers"-based immigration policy will likely worsen.

The "show me your papers" aspect of federal immigration policy has already been baked into federal immigration law, which relies heavily upon a highly controversial program called, "Employer Sanctions." Employer Sanctions is a hallmark provision of the Immigration Reform and Control Act of 1986 (IRCA) -- the last time Congress passed comprehensive immigration reform. Under Employer Sanctions, Congress experimented with a classic law and economics approach to immigration policy. The idea is that unwanted migrants come into the U.S. in search of a simple economic incentive: a job.

Consequently, Congress decided that the U.S. can deter the unwanted entry of undocumented workers through the structuring of economic disincentives: unwanted migrants won't come into the U.S. if the U.S. shuts off the "jobs magnet." In the debates leading up to IRCA's passage, Congress blamed employers for the problem of unwanted migration. Congress predicted that employers would stop hiring undocumented workers if they faced heavy penalties for doing so. Under the Employer Sanctions provision of IRCA, Congress slapped civil fines and even criminal penalties on employers if they failed to conduct a "show me your papers" document inspection protocol and if the employer "knowingly" hired an undocumented worker. For the first time in history, IRCA required an employer to request employees to produce documents that established identity and work authorization.  

Some members of Congress expressed concern that the Employer Sanctions provision basically delegated racial profiling duties to employers by deputizing them as immigration screening agents. How would an employer carry out a "show me your papers" inspection process without the risk of racial discrimination? Would an employer have the expertise to inspect immigration documents? What if an employer rejected valid documents from U.S. citizens and lawful immigrants?  A few members of Congress predicted that some employers would simply not hire anyone who looked or sounded foreign, rather than risk the consequences of large civil fines and potential jail time. Consequently, IRCA required that the General Accounting Office (GAO -- now renamed as the Government Accountability Office) study the potential discriminatory impact of the Employer Sanctions provision and whether this "show me your papers" process would lead to greater racial profiling against U.S. citizens and lawful immigrants. Congress promised to repeal the Employer Sanctions provision if the GAO concluded that the immigration screening program was found to be discriminatory.

By 1990, the GAO started publishing the findings of its research. The GAO concluded that the Employer Sanctions provision led to widespread discrimination. In addition, several studies concluded that this approach did not work in stopping unwanted migration. Experts concluded that migration patterns are animated by more than simple economic incentives. Despite its earlier promise to repeal Employer Sanctions if the program was found to be discriminatory, Congress ultimately did not repeal the provision. In fact, Congress and the Executive Branch began experimenting with more "show me your papers" programs through expanding the delegation of immigration screening duties to others.

Through passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress invited state and local governments to participate in a broader role in immigration screening through implementing several more "show me your papers" programs and by adding several "show me your data" programs as well. With IIRIRA, Congress created several database screening programs that would facilitate immigration screening protocols, and that would allow for the greater sharing of information between state law enforcement officials and federal immigration officials. IIRIRA also created E-Verify, a test pilot program that allows employers to collect personally identifiable data from employees and to run this data over the internet in an attempt to confirm identity and citizenship status.

After the terrorist attacks of 9/11, the Bush Administration used provisions of IIRIRA to implement programs that allowed for the delegation of immigration screening duties to state and local law enforcement to further counterterrorism policy. These highly controversial programs include S-COMM (Secure Communities), the Criminal Alien Program (CAP), and 287(g) agreements--formal agreements between the Immigration and Customs Enforcement (ICE) agency at the U.S. Department of Homeland Security (DHS) and state and local law enforcement agencies that set forth immigration screening protocols and training requirements. Under these programs, for example, arrestee fingerprint data is sent to the FBI for criminal background checks and to the DHS to check the fingerprint data in several immigration databases.

The Supreme Court held that Section 2(B) of Arizona's SB 1070 law was just a mirror image of these preexisting federal programs--like S-COMM, CAP and 287(g)--that already allow for the sharing of immigration status information between the states and the federal government.  Studies conducted on these programs, however, have concluded that, like the Employer Sanctions program, these "show me your papers" and "show me your data" programs have also led to widespread discrimination. 

Multiple immigration laws have been considered by the Arizona Senate and House in recent years that require state officials and private entities to undertake a "show me your papers" or "show me your data" immigration screening protocol. Arizona's SB 1070 delegates "show me your papers" and "show me your data" duties to state and local law enforcement. Arizona's SB 1407 and 1141 attempt to delegate "show me your papers" duties to teachers and school officials. Arizona's SB 1611 attempts to delegate "show me your papers" duties to landlords. Arizona's SB 1405 attempts to delegate "show me your papers" duties to doctors and hospital workers. Arizona's House Bill (HB) 2008 attempts to delegate additional "show me your papers" duties to state workers who distribute public benefits. The Legal Arizona Worker's Act (LAWA) delegates internet-database screening duties to employers by requiring that all employers in Arizona use E-Verify under the threat of permanent revocation of a state business license.  In other words, LAWA delegates "show me your data" duties to employers that are piled onto the "show me your papers" duties that are required under IRCA's Employer Sanctions provision. 

Not all of these state immigration laws passed in the Arizona legislature. However, it shows a distinct pattern is clear. LAWA was upheld by the Supreme Court last year in Chamber of Commerce v. Whiting. Section 2(B) of SB 1070 was just upheld by the Court in Arizona v. U.S.  The "show me your papers" and "show me your data" aspect of federal immigration law  has been found to result in widespread discrimination. The cancer of IRCA and IIRIRA that poses a threat to the Equal Protection Clause will likely spread on a state-by-state level now with the Supreme Court's ruling on SB 1070.