Immigration Reform: Is Washington Headed For Another Try?
Rob Randhava
For years, immigrants’ rights advocates have been left frustrated by the failure of Congress to enact a long-overdue overhaul of immigration policies. In the absence of federal legislation, a growing number of states have taken matters into their own hands by passing harsh “enforcement” measures that only worsen the problems caused by a dysfunctional national system. Several recent developments, however, have renewed hopes that Congress and President Obama will again take up the issue in 2013.
Supreme Court Weighs in on State Immigration Laws
In the vacuum left by several failed attempts by Congress to enact a bipartisan immigration bill, a number of states undertook their own efforts to address perceived failures in immigration enforcement. In 2010, Arizona enacted the first of a series of highly controversial state measures, S.B. 1070. This law, and so-called “copycat” laws that were subsequently enacted in other states such as Alabama and Georgia, were rooted in the idea that in the absence of aggressive federal deportation policies, creating a hostile legal environment to unauthorized immigrants would cause such individuals to voluntarily “self-deport.” Among other things, S.B. 1070 and other state laws require police officers to detain anyone they suspect, during a stop or arrest, of being in the country illegally in order to determine their legal status and notify federal immigration authorities.
Before S.B. 1070 could take effect, it was quickly challenged on several fronts. Civil rights and immigrant advocates sued Arizona alleging that the law enforcement provision would encourage racial and ethnic profiling, and they launched nationwide protests and a boycott of the state. The U.S. Department of Justice also filed suit, arguing that immigration enforcement is a purely federal matter under the Constitution and that states are pre-empted from acting on their own. After much of S.B. 1070 was blocked by a federal district court in a ruling that was upheld by the U.S. Court of Appeals for the Ninth Circuit, the U.S. Supreme Court agreed in late 2011 to review the case.
In one of the highest-profile cases of the year, Arizona v. United States, the Supreme Court ruled in June 2012 that several of S.B. 1070’s provisions were unconstitutional because they intruded upon federal authority over immigration policy. The Court held that it was premature, however, to strike down the most controversial part of the law, which requires police to determine the immigration status of people they stop or arrest. Writing for the Court, Justice Anthony Kennedy argued that Arizona might be able to implement the law so that suspected unauthorized immigrants are not detained any longer than they would be held for the underlying offense. It would be up to the state’s courts to clarify the limits on the law. Yet he concluded that the ruling “does not foreclose other pre-emption and constitutional challenges to the law as interpreted and applied after it goes into effect,” leaving the door open to future challenges.
The reaction of civil rights and immigrant advocates to the ruling in Arizona v. United States was mixed. Many expressed strong disappointment that the so-called “papers please” provision was allowed to stand for now. Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights, however, found more to like in the ruling. “Today’s Supreme Court decision is not all that we wanted, but it’s certainly not all that we feared,” he said. “We are confident that this provision will ultimately be struck down, either in the courts or at the ballot box, because it is simply not workable. We have grave doubts that Governor Jan Brewer and the state of Arizona can implement S.B. 1070 without seriously violating Arizonans’ civil rights.”
Regardless of whether the “papers please” section of S.B. 1070 ultimately survives what is certain to be a protracted battle in the courts, the Court’s ruling may deter other states from enacting similar laws in the near future. While the Court essentially punted on the measure, it set the constitutional bar fairly high, and states may not have either the will or the financial resources to spend years in courts they know will be skeptical.
At the same time, states with Arizona “copycat” laws have also faced unexpected economic consequences as a result of enacting these laws. Many immigrant workers have fled states like Georgia and Alabama, leaving farmers with unpicked crops, businesses with fewer customers, and state and local governments with shrinking tax bases. Instead of resolving the issue of immigration, the wave of state laws has only increased the pressure on Congress to come up with a solution.
Obama: If Congress Won’t Help DREAMers, I Will
Only days before the Supreme Court weighed in on state immigration laws, and frustrated with congressional paralysis, President Obama made a surprising announcement that grabbed the attention of advocates on all sides of the immigration debate. On June 15, he stated that his administration would no longer deport young unauthorized immigrants who are eligible for relief under the DREAM Act, a bipartisan measure that had been repeatedly blocked in Congress.
The DREAM Act, first introduced in 2001, would provide legal status to unauthorized immigrants who arrived in the United States as children if they pursue higher education or military service. The rationale for the bill is simple enough: children who grow up in this country should not be punished because their parents brought them here illegally. Yet since 2001, and even though opponents have been hard-pressed to come up with principled arguments against the bill, it has been bogged down in Congress. Most recently, in late 2010, the House of Representatives passed the bill. The bill also had majority support in the Senate, but the Senate’s 55-41 vote fell short of the 60 votes needed to overcome a filibuster.
Obama’s executive order cannot grant legal status to immigrants. Only Congress can do that. But it relies on the long-established notion of prosecutorial discretion: bluntly defined, an administration can decide to not pursue certain deportation cases where there are humanitarian reasons or other compelling factors.
Civil and human rights advocates were thrilled. “Today, the administration has provided these young adults the opportunity to pursue the American Dream,” said Laura W. Murphy, director of the ACLU Washington Legislative Office. Wade Henderson called it “a good day for America.” The reactions from many DREAM Act opponents were more measured; sensing that Obama would enjoy strong public support on the merits, many attacked him on process instead. Senate Minority Leader Mitch McConnell, R. Ky., meanwhile, deferred to GOP presidential candidate Mitt Romney, who promised to “replace” the policy, but never specified how.
A Changing Electorate Speaks Out in 2012
Just a few years ago, the outcry over Obama’s decision would have been much, much stronger. Yet a growing number of his opponents have come to realize that immigrants, and Latinos in particular, are a growing part of the American electorate that both parties must attract if they are to survive. At no time was this more evident than on the morning of November 7, the day after Obama was re-elected. Exit polls showed that Obama won more than 77 percent of the Asian American vote (according to an exit poll conducted by the Asian American Legal Defense and Education Fund), as well as 70 percent of the Latino vote, with an even stronger margin in many swing states. “This poll makes clear what we’ve known for a long time: the Latino giant is wide awake, cranky, and it’s taking names,” said Eliseo Medina, secretary-treasurer of the SEIU, regarding one such poll conducted by CNN.
In the wake of the election, many observers were quick to point to harsh Republican stances on immigration – including state enforcement laws and the blockade of the DREAM Act – as a decisive factor for Latino voters. Some Republicans, such as Sen. Marco Rubio, R. Fla., had tried to build on the outreach of former President George W. Bush, while others, like Sen. Lindsey Graham, R. S.C., warned in August that “we’re not generating enough angry white guys to stay in business for the long term.” Yet they had often been stymied by their own party, while being badly outflanked by Democrats.
Since November 6, more Republicans appear to have taken notice. House Speaker John Boehner, R. Ohio, said that “a comprehensive approach [to immigration reform] is long overdue, and I’m confident that the president, myself, others can find the common ground to take care of this issue once and for all.” Even archconservative Fox News host Sean Hannity said that his views on immigration had “evolved,” including on “a pathway for those people that are here.”
Challenges Remain
As Obama begins his second term, and a new Congress gets to work, immigration reform appears to have moved up near the top of the legislative agenda. Obama has devoted more attention to the issue, including in his inaugural address. In the Senate, a bipartisan group calling itself the “Gang of Six” is engaged in active discussions over a blueprint, which they hope will translate into a consensus on legislation.
Few observers, however, expect the path to be easy. In the short term, Congress will continue an ongoing fierce debate over the federal budget. After the tragic December 14 shooting at Sandy Hook Elementary School in Newtown, Conn., in which 20 children and six adults were murdered, the national debate over gun violence appears to have reached a boiling point. Both issues are likely to consume some of the legislative calendar, and could taint the prospect of bipartisan cooperation on other issues like immigration.
Then there is also the overwhelming complexity of the immigration issue itself, which involves many moving parts and difficult details. Questions of border enforcement and a roadmap to citizenship for unauthorized immigrants remain highly controversial, but they are only part of the debate. The Senate’s last serious effort at immigration reform, in 2007, was derailed in part over the issue of temporary work visas, pitting immigration and labor advocates against business interests, even though they were allied on other parts of the bill. A comprehensive bill would also have to take on tough questions surrounding family visas, farmworkers, and detention policies. In spite of these challenges, Congress appears more determined than ever to try.
Rob Randhava is senior counsel for The Leadership Conference on Civil and Human Rights and The Leadership Conference Education Fund and specializes in immigration and housing/finance issues.
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