SB 1070

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December 30, 2011 | 9:56 AM | By

Top five immigration stories of 2011, #1: The battle in the states

Photo by naslrogues/Flickr (Creative Commons)

A year ago, when Multi-American was counting down the top five immigration stories of 2010, topping the list with Arizona’s game-changing SB 1070 was a no-brainer. Not necessarily because news of the 2010 anti-illegal immigration law dominated immigration coverage last year, but because of the lasting impact the law was bound to have on other states. I wrote then:

What continues to make SB 1070 such an important story are its ramifications beyond Arizona, which will be playing out in the years to come. Even with some of its provisions still hung up in appeals court by the pending federal challenge, SB 1070 has emboldened conservative state legislators around the country to draft their own versions of the law, some just as strict or more so than the original.

A year later, SB 1070-inspired immigration enforcement bills have made their way through statehouses around the country. Similarly strict laws have taken effect in states like Alabama, Georgia, Utah, Indiana and South Carolina.

Like the Arizona measure that inspired them, headed to the U.S. Supreme Court on a state appeal, all of these face their own court challenges. Federal judges have blocked several of these laws’ most stringent provisions, including a controversial provision in Alabama that would require public schools to check the immigration status of students, which when the law first took effect prompted a rash of school absences.

Agricultural states like Georgia and Alabama, meanwhile, have experienced severe labor shortages as immigrant farm workers have fled their fields for more welcoming climes.

The new laws enacted are but one small aspect of what’s been happening in the states. The National Conference of State Legislatures reported recently that in 2011, there were 1,607 bills and resolutions relating to immigrants and refugees introduced in all 50 states and Puerto Rico, significantly up from a little more than 1,400 in 2010. Bolstered by the relative success of SB 1070, even as parts of the law remain hung up in court, immigration restriction-minded legislators in many states banded together, working with the same legal teams to help them draft immigration crackdown bills.

Interestingly, in spite of the bill-filing fury, 11 percent fewer of these state immigration bills became law this year than in 2010. Among those that didn’t get anywhere were a series of bills intended to end birthright citizenship for the U.S.-born babies of undocumented immigrants, written with the aid of the same legal counsel behind SB 1070 and introduced in states like Arizona, Indiana and Iowa. Also voted down was an Arizona “omnibus” bill that would have denied public services to undocumented immigrants, similarly to California’s ill-fated Proposition 187 in 1994, and an Arizona bill requiring that hospitals check for patients’ immigration status.

Where does it go from here? The Supreme Court decision on SB 1070 could well hold the answer.

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FILED UNDER: Alabama immigration law, Georgia immigration law, SB 1070, South Carolina immigration law, State immigration laws, Top five immigration stories of 2011
December 27, 2011 | 12:32 PM | By

Top five immigration stories of 2011, #4: Birthright citizenship

Photo by Victoria Bernal/Flickr (Creative Commons)

The political battle over birthright citizenship exploded almost a year ago, when a series of states began introducing bills seeking to cut off the children born to undocumented immigrants from automatic U.S. citizenship.

The United States, like most countries in the Americas but unlike many European nations, has had a longstanding practice of jus soli citizenship, meaning citizenship is granted to those born on U.S. soil (jus soli is Latin for “right of the soil). Other nations, such as Germany, abide by versions of jus sanguinis (Latin for “right of blood”) citizenship, which there is granted only to children of citizens and/or legal residents.

The notion of barring the children of undocumented immigrants from receiving U.S. citizenship had long lingered on the more extreme fringes of the immigration restriction lobby. But in the anything-is-possible climate that followed the approval of Arizona’s stringent SB 1070 last year, a group of like-minded state legislators banded together and, with the aid of attorneys who worked on SB 1070, created one-size-fits-all model state legislation that would distinguish between babies born to undocumented immigrants and other children when issuing state birth certificates.

Bills based on this model were introduced in several states, including four related bills in Arizona. The idea was to force a Supreme Court reinterpretation of the 14th Amendment of the U.S. Constitution, which since a landmark 1898 ruling has been interpreted as defining how citizenship is bestowed on those born in this country. Here’s Section 1 of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

While it seems self-explanatory, opponents of the 1898 definition (which came out of a legal challenge from a young San Francisco-born Chinese American named Wong Kim Ark) argued otherwise. Here’s what John Eastman, a Chapman University law professor who along with Kansas Secretary of State Kris Kobach helped draft the model bill, wrote in a 2006 legal paper:

Textually, such an interpretation is manifestly erroneous, for it renders the entire “subject to the jurisdiction” clause redundant. Anyone who is “born” in the United States is, under this interpre-tation, necessarily “subject to the jurisdiction” of the United States. Yet it is a well-established doctrine of legal interpretation that legal texts, including the Constitution, are not to be interpreted to create redundancy unless any other interpretation would lead to absurd results.

The “subject to the jurisdiction” provision must therefore require something in addition to mere birth on U.S. soil.

Anti-birthright citizenship bills were introduced in states that included Arizona (where four related bills were introduced), Iowa and Indiana; a related U.S. Senate resolution seeking a constitutional amendment was introduced by GOP legislators from Kentucky and Louisiana.

In the end, the bills didn’t get much traction. In Arizona, where two of the anti-birthright citizenship bills were voted on in the Senate, these and three other strict anti-illegal immigration bills (including one requiring hospitals to check immigration status, and another “omnibus” bill that would bar undocumented immigrants from public services) were voted down in March.

Much speculation followed: Had the anti-birthright citizenship frenzy contributed to a jump-the-shark moment for immigration restriction in the nation’s statehouses?

As the last several months have shown, not entirely. While the action has cooled in Arizona, as evidenced most recently by the recall of SB 1070 sponsor and former state Sen. Russell Pearce (also a champion of the anti-birthright citizenship movement), other states such as Georgia, Alabama and South Carolina have since enacted their own strict anti-illegal immigration laws.

And while none of these have included an anti-birthright citizenship component, their relative success – in spite of court challenges – has shown that state-level immigration initiatives have yet to lose their popularity.

As for the state-to-Supreme Court trajectory that the architects of the anti-birthright citizenship bills envisioned, based on what they hoped would happen with SB 1070? The high court is set to take on the SB 1070 case early next year, a ruling that could make or break the state law trend. But that’s for another story this week.

Check back in tomorrow for top story #3.

FILED UNDER: 14th Amendment, Anti-birthright citizenship, Birthright citizenship, John Eastman, Jus sanguinis, Jus soli, Kris Kobach, SB 1070, Sen. Russell Pearce, Top five immigration stories of 2011, Wong Kim Ark
December 14, 2011 | 10:47 AM | By

Now that the Supreme Court has taken up SB 1070, what happens next?

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On Monday, the U.S. Supreme Court announced that it would take up an appeal by the state of Arizona regarding SB 1070, the state’s controversial and trend-setting 2010 anti-illegal immigration law that has since inspired similar laws in other states. Before it was implemented in July of last year, a federal judge in Arizona blocked some of SB 1070′s main provisions, including one that would empower local police to check the immigration status of people they suspect of being in the country illegally.

The Supreme Court justices won’t be weighing the merits of SB 1070, but rather the merits of the lower federal court judge’s decision, made pending a constitutional challenge from the Obama administration filed shortly before the law took effect and since upheld in appeals court. That lawsuit asserts that immigration law is the domain of the federal government, pre-empting state attempts to set their own rules.

So what happens next? Explaining the legal stakes is law professor and immigration blogger Kevin R. Johnson, dean of the UC Davis School of Law and an editor of the ImmigrationProf Blog. A few months ago in an analysis of the SB 1070 case, Johnson predicted that the Supreme Court would take up Arizona’s appeal, and weighed in on the potential influence of Chamber of Commerce v. Whiting, a case involving a 2007 Arizona law forcing employers to check workers’ legal status, which the high court upheld this year.

How the justices rule on the case, which is expected to be heard in the spring, could among other things affect the temporary injunctions issued by lower federal courts blocking the stricter provisions of SB 1070-inspired laws in states like Georgia, Alabama and South Carolina. These include, for example, an especially divisive portion of Alabama’s new anti-illegal immigration law that would have public schools check the immigration status of students.

In Chamber of Commerce v. Whiting, only eight of the nine justices considered the case, with Justice Elena Kagan recusing herself; Kagan has also recused herself from the SB 1070 case, meaning the court could be split. Johnson explains the details:

M-A: The Supreme Court has decided to review Arizona’s appeal on the SB 1070 case. Just what will the court be weighing?

Johnson: Technically, the court will be reviewing the Ninth Circuit’s affirmance of a district court injunction barring four sections of SB 1070 from going into effect.

As a practical matter, the court will be reviewing the same federal preemption arguments that were raised in the district court and Ninth Circuit.

M-A: How could a decision affect the temporary injunctions blocking of portions of similar state laws, such as in Alabama and Georgia?

Johnson: Depending on whether there is an opinion (which there would not be if the court was equally divided 4-4), the opinion could have a big or small impact on the other state immigration law cases, depending on how broad or narrow the court’s opinion was.

Even a narrow opinion, however, would, I think, have an impact on the other state laws that resemble in important ways Arizona’s (including Alabama, Georgia, and South Carolina’s).

M-A: Based on lower court decisions, the previous SCOTUS decision on the Arizona E-Verify law and other precedents, which way do you think the court might go?

Johnson: Hard to say. If the justices line up as in Whiting, it could be 5-3 for reversal (of the lower court’s ruling to block parts of the law). If Justice Kennedy changes his mind, it could be 4-4.

In that event, the Ninth Circuit’s decision affirming the injunction of four provisions of SB 1070 will remain in effect. If other justices who upheld the Arizona law think that SB 1070 is a very different law, then the majority for affirmance could grow.

M-A: So to make clear, the court is not weighing the constitutionality of SB 1070, correct? At what stage is the federal constitutional challenge to the state law?

Johnson: The court will decide whether, at this stage of the litigation, SB 1070 is preempted by federal law. This is a constitutional law question under the supremacy clause that makes federal law the supreme law of the land. Thus, a constitutional question is at the core of this case. The court could duck it but probably, in my view, won’t.

In July of last year, as SB 1070 was set to take effect, Johnson provided his take on the federal government’s constitutional challenge to the Arizona law in another Multi-American Q&A.

FILED UNDER: Politics/Justice, ImmigrationProf Blog, Kevin Johnson, SB 1070, U.S. Supreme Court, UC Davis
December 12, 2011 | 11:21 AM | By

What the Supreme Court’s review of the SB 1070 case means

Photo by S.E.B./Flickr (Creative Commons)

The U.S. Supreme Court building in Washington, D.C., July 2008

After a federal judge in Arizona blocked portions of the state’s then-new SB 1070 anti-illegal immigration law last year, among other things putting on hold a provision that would empower police to check the immigration status of people suspected of being in the country illegally, Arizona Gov. Jan Brewer vowed to fight the decision all the way to the U.S. Supreme Court. And it’s there that the case has now wound up.

The high court announced this morning that it would review the federal government’s challenge to the law, which since its partial enactment in July of last year has led to a series of copycat laws in other states – and subsequent legal challenges to each.

The Supreme Court justices won’t be weighing the merits of SB 1070, but rather the merits of the lower federal court judge’s decision to block parts of it from being enforced pending a constitutional challenge from the Obama administration. The federal lawsuit, filed in early July of last year as SB 1070 was set to take effect, asserts that immigration law is the domain of the federal government and that it pre-empts attempts by states to set their own immigration rules.

While the SB 1070 appeal won’t likely be heard until spring, how the high court justices rule could either encourage or put a halt to the flurry of state anti-illegal immigration laws that followed. In the last year, states that include Georgia, Alabama, South Carolina, Utah and Indiana have enacted their own versions of SB 1070. Alabama, South Carolina and Utah have also been sued by the federal government on pre-emption grounds; others have been sued by civil rights groups.

In some cases, lower federal court judges have issued preliminary injunctions – just as was done in Arizona – blocking some of the more controversial parts of these laws. For example, a judge in October blocked a provision of the Alabama law that required public schools to check student’s immigration status, initially prompting a rash of school absences. The decision by the Supreme Could could have a bearing on these lower court decisions as well; if the partial block of the Arizona law is lifted, it could also affect the injunctions blocking portions of the other state laws as the federal pre-emption challenges and other lawsuits wind their way through the courts.

The preliminary injunctions issued have varied from state to state. For example, a September ruling by a federal judge in Birmingham temporarily blocked a provision that would bar undocumented immigrants from state universities, but still allowed police to question people they suspect of being in the country illegally. (The controversial public schools provision was blocked the following month, after the federal government appealed.) Last summer in Georgia, where civil rights groups have filed suit against the state, a federal judge temporarily blocked the provision allowing police to check for immigration status.

Meanwhile, the Supreme Court ruled earlier this year in favor of a previous Arizona anti-illegal immigration law, one mandating employers to use a federal program called E-Verify to check workers’s immigration status and punishing those who don’t comply. Many of the state laws that have followed SB 1070 have had similar employer provisions, including the new laws in Georgia and Alabama, which have since suffered from agricultural worker shortages.

FILED UNDER: Politics/Justice, Arizona, Jan Brewer, SB 1070, U.S. Supreme Court
November 10, 2011 | 2:26 PM | By

Five takes on why Russell Pearce went down in Arizona, and what it means

Photo by Joshua Lott/Getty Images News

One could probably fill a small library by now with the many analyses of Arizona senate president Russell Pearce’s defeat Tuesday in a historic recall election, Arizona’s first recall of a state legislator.

There are different takes on why Pearce, best known for sponsoring last year’s game-changing SB 1070 state anti-illegal immigration law, was ousted from his seat. He was a strident and popular voice within the immigration-restriction lobby, promoting not only a law that empowered local police to check for immigration status (a provision of SB 1070 that remains blocked), but pushing legislation earlier this year that would have kept U.S.-born children of undocumented parents from obtaining automatic U.S. citizenship. And in spite of being partly hung up in court, SB 1070 has inspired a series of imitations, including similar new laws Alabama, South Carolina and Georgia.

When Pearce fell in the recall, defeated by fellow Republican Jerry Lewis, he fell heavily. Below are five pieces exploring what brought down the most powerful individual in Arizona politics, and one of the most influential figures in immigration politics of recent years. The general consensus: While Pearce’s hardline immigration stance played a prominent role in his defeat, it was a combination of problems that ultimately did him in.

  • The Washington Post’s Rachel Weiner had an interesting take on the role of the Mormon Church (both Pearce and Lewis are Mormons) in the defeat of Pearce, whose immigration politics were far to the right of those of the church:

The Mormon church has been trying to reach out to Hispanic voters, and Pearce’s virulent anti-immigrant rhetoric, along with his divisive law, was seen as hurting that effort. Pearce has condemned the church for its anti-SB1070 stance and angered leaders by falsely claiming that he had their support.

“The Mormon church clearly percolated below the surface to make sure that its members knew that Russell Pearce was making their missionary efforts in Central and South America more difficult,” said Nathan Sproul, Republican strategist

Recall supporters said the Utah Compact — a Mormon model for more comprehensive immigration reform signed about a year ago — helped spark their campaign.

“I’ve heard [Mormon conservatives] say, ‘We need to love people,’ and ‘We shouldn’t be doing this to people,” one source told Religion Dispatches.

  • ColorLines magazine’s analysis pointed to immigration as an important factor, but not the sole one, as Pearce was long criticized for pushing his own pet interests over those of constituents. Julianne Hing interviewed Randy Parraz, co-founder and president of of Citizens for A Better Arisona, which led the recall effort. She wrote:

But while it was on anti-immigrant fear mongering that Pearce made his name, it wasn’t necessarily a pro-migrant solidarity that pushed Arizona voters to choose Lewis over Pearce. According to experts and organizers, Pearce’s electorate was fed up with his myopic focus on immigration enforcement and anti-immigrant bills because they left little time to tackle the issues Arizona voters cared most about: jobs, education and healthcare.

“[People] saw it in the first month of his leadership [as Senate president],” said Parraz. “He was focused on nullifying federal law, changing the U.S. Constitution, putting guns on campuses, cutting education, cutting off people waiting for organ transplants, and instead of spending $1.3 million and allowing 98 Arizonans to live, he sent $5 million to an angry sheriff for immigration enforcement.”

“That kind of politics, people started getting fed up.”

FILED UNDER: Politics/Justice, Russell Pearce recall, SB 1070, Sen. Russell Pearce
November 7, 2011 | 4:35 PM | By

Is the Russell Pearce recall election a referendum on Arizona’s immigration politics?

Photo by Joshua Lott/Getty Images News

Russell Pearce, the Republican Arizona state senate president whose SB 1070 anti-illegal immigration law continues to inspire similarly strict immigration laws in other states, could lose his seat to a recall Tuesday. He’ll be running against a challenger, fellow Republican Jerry Lewis, in the state’s first-ever recall election involving a state lawmaker.

And while Pearce’s hardline stance on immigration isn’t the sole basis of the effort to oust him, the outcome of tomorrow’s election is being regarded by many as a popular vote on his controversial immigration politics – and on the public image of Arizona that SB 1070 and other proposed immigration crackdowns there since have helped create.

As the polls prepare to open, several news analyses have examined what the recall vote means in terms of Pearce’s and Arizona’s immigration policies and politics:

  • An Associated Press story today referred to the recall election as something “likely to be viewed as a referendum on the state’s hardline immigration policies:”

People on both sides of the debate believe that removing Pearce would send a powerful message to the Legislature that uncompromising stands on immigration and other issues will not be tolerated by voters. On the flip side, a Pearce victory will say a tough stance on illegal immigration is just what voters demand.

“The folks running the recall are trying to send a message to the rest of the Legislature that if they can take out Russell Pearce, then they can take out any one of us, and to get us to stop running bills against illegal immigration,” said Republican Sen. Ron Gould.

Pearce is facing fellow Republican Jerry Lewis, a charter school executive and former accountant who hopes his candidacy will help the district and Arizona shed false images as being home to intolerance.

  • For a story Sunday, the East Valley Tribune in Tempe, Ariz. interviewed Arizona pollster Margaret Kenski, who with others pointed not only to the immigration component, but to dissatisfaction over the perception that Pearce has preferred to advance his own pet issues over those important to voters:

Pearce has made the recall about his signature issue of illegal immigration. But Kenski said the election is about different things to different people.

Her recent polls have found that voters are more concerned about the economy, jobs and education. Those issues have edged out illegal immigration as the former top issue, Kenski said.

Even when looking at illegal immigration, polls have found voters aren’t as strident as Pearce, she said. They almost all want a secure border but there’s more acceptance for guest workers, the notion that Americans won’t do some jobs and some version of the Dream Act.

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FILED UNDER: Culture/Identity, Politics/Justice, Arizona, Arizona recall election, Russell Pearce recall, SB 1070, Sen. Russell Pearce
October 3, 2011 | 12:51 PM | By

The Alabama ruling, SB 1070 and the Supreme Court: What’s next?

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The U.S. Supreme Court Building, May 2006

As it begins its new term today, the U.S. Supreme Court is expected to consider an appeal from the state of Arizona on SB 1070, the controversial 2010 anti-illegal immigration law that has since spurred copycat laws throughout the United States – but whose key provisions remain blocked by a federal judge’s ruling in July of last year.

Among those provisions is one that would allow local police to check for immigration status if there is “reasonable suspicion” that people they encounter while conducting their work could be in the country illegally. But while this component of the law hasn’t gone into effect in Arizona, it was just allowed in Alabama by a federal judge in Birmingham last week, who issued a contradictory ruling when considering an even stricter post-SB 1070 immigration crackdown measure in that state.

While blocking other provisions, the Birmingham judge also upheld another controversial aspect of the Alabama law, one that requires public schools to check the immigration status of students. The decision on this provision has since been tied to a rash of school absences.

What does last week’s ruling in Alabama bode for SB 1070 and state immigration laws in general as the Supreme Court begins its new term? For starters, with two different federal judges in two states now having issued contradictory rulings on state immigration laws, the Alabama ruling ups the ante that the high court will take up SB 1070, potentially settling once and for all whether states can or cannot enforce immigration laws.

The Alabama decision itself is on its way to appeals court. Here is what one legal expert told the International Business Times, which published a good analysis of the Alabama decision and what happens next on a larger scale:

“Because of the proliferation of state immigration laws, we need resolution from either the Supreme Court or Congress,” Stephen Yale-Loehr, teaches Immigration Law at Cornell University Law School, told IBTimes. “Right now, for example, it is very hard for national employers to know what they can or cannot do in various states.”

Continue reading →

FILED UNDER: Alabama immigration law, Alabama ruling, HB 56, SB 1070, U.S. Supreme Court
June 15, 2011 | 2:59 PM | By

Greetings from the Sunshine State

Photo by Calsidyrose/Fickr (Creative Commons)

I’ve just arrived in Orlando, Florida, where I’ll be spending the next couple of days participating in this year’s National Association of Hispanic Journalists convention. I’ll be speaking on two panels related to immigration, so if any Multi-American readers are in town, stop by and say hello.

Thursday morning I’ll be joining Al Jazeera journalist Dima Khatib to discuss the coverage of Islamic communities in the United States during what has been a difficult and extraordinary period for Middle Eastern immigrants and their descendants. The panel starts at 10:30 a.m.

At 9 a.m. Friday I’ll be on an immigration reporting panel with two journalism professors and an immigration attorney. We’ll talk about how the news media has reported stories like that of Arizona’s controversial SB 1070 anti-illegal immigration law, and how to improve coverage of immigration issues.

The convention schedule can be downloaded here. I’ll also be staffing the NPR booth on Thursday afternoon, so please come on by.

FILED UNDER: Florida, NAHJ, SB 1070