The Weak, Harmful Reasoning that Undergirds Restrictive Immigration Policy

November 16, 2012

by Jeremy Leaming

Justice Antonin Scalia, in his concurring/dissenting opinion in last term’s decision on Arizona’s anti-immigrant law, offered some unusual statements about Arizona’s need for such a ridiculously rigid immigration law, and even took a swipe at President Obama’s executive policy stopping deportations of some undocumented immigrants.   

According to Scalia, Arizona was suffering from a deluge of undocumented immigrants. “Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy.” But he did not stop there and advanced another rightwing talking point for justifying wobbly and harmful state action on immigration. It’s all the federal government’s fault, he said. “Federal officials have been unable to remedy the problem, and indeed have recently shown they are unwilling to do so.”

It’s this mentality – undocumented persons are flooding states from coast to coast, using up scarce state resources and because the federal government won’t act, state lawmakers will – that undergirds laws like Arizona’s SB 1070 that also promote racial profiling and undermine all citizens’ rights.

In a just released ACS Issue Brief, Pratheepan Gulasekaram and S. Karthick Ramakrishan not only take Justice Scalia to task for failing to “provide sources for these seemingly crucial truths,” but reveal a study of 50 states and more than 2,5000 localities that show “political affiliation was the most significant factor in explaining” the enactment of laws like Arizona’s SB 1070.

In his dissenting opinion, Scalia, as the authors note, provided no citation for his claim that demographic changes have taken place in Arizona. The authors note that Scalia’s comments in his dissent prompted Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit, to write for Slate earlier this year about Scalia’s dissenting opinion in Arizona v. United States. Posner took particular exception to Scalia’s passage about undocumented persons overtaking Arizona and its resources. “But the suggestion that illegal immigrants in Arizona are invading Americans’ property, straining their social services, and even placing their live in jeopardy is sufficiently inflammatory to call for a citation to some reputable source of such hyperbole. Justice Scalia cites nothing to support it,” he wrote.

It is those kinds of wobbly claims that many lawmakers pushing anti-immigrant policy also have relied upon. But Gulasekaram and Ramakrishnan’s study says they cannot be justified by empirical data.

“We empirically tested the rationales proffered to support such laws, to wit, increased recent immigration, economic stress, and language isolation.” Their analysis “revealed that demographic factors associated with new immigration and attendant policy challenges are neither necessary nor sufficient conditions for state and local immigration laws. That is to say, there are thousands of jurisdictions where demographic change does not lead to ordinance activity and there are many jurisdictions where restrictive legislation has been passed in the absence of significant local demographic pressures.”

Rhetoric like Scalia’s may be compelling, largely because of its simplicity and ability to stir prejudices, but it’s not supported by empirical support. So the restrictive immigration laws are not grounded in reality, they’re grounded partly in fear mongering.

“These laws do not arise naturally out of economic or social necessity; instead they largely are the products of political opportunism. In the end, Scalia’s dissent showcases why untested assumptions about undocumented immigrants are so dangerous,” the authors continue. “They help form the basis of impossible theories of the Union, whereby every state possesses the inherent power to expel inhabitants; they change the constitutional conversation about state immigration regulation, building an unsubstantiated empirical case for the necessity of state intervention ….”