Experts offer perspectives from the trenches
In a Harvard Law School discussion on immigration law, expert panelists offered perspectives from the trenches on Arizona SB 1070, the controversial immigration law enacted earlier this year.
The Arizona act makes it a state misdemeanor for an alien to be in Arizona without carrying required federal documents, bars state or local officials from restricting enforcement of federal immigration laws, and cracks down on people who shelter, hire or transport illegal aliens. Critics of the legislation say it encourages racial profiling, while supporters say the law forbids the use of race as the sole basis for investigating immigration status.
The U.S. Department of Justice brought suit against Arizona’s law in United States v. Arizona, and U.S. District Court Judge Susan Bolton granted a preliminary injunction that has blocked key provisions of the law from being implemented. Arizona Gov. Jan Brewer appealed the District Court’s ruling to the 9th Circuit, which was scheduled to hear arguments in the case on Nov. 1.
John Willshire-Carrera, co-managing attorney of the Harvard Immigration and Refugee Clinic, moderated the conversation between panelists Monica Ramirez, counsel to the assistant attorney general for civil rights; Eva Millona, executive director of the Massachusetts Immigrant and Refugee Advocacy Coalition; and Clare Huntington, associate professor of law at the University of Colorado.
Willshire-Carrera, who is also lead attorney with the Immigration Unit of Greater Boston Legal Services, said the panel’s purpose was to explore the Arizona law—“what it says, what the issues are with it, and what the litigation is around it … and how it’s affecting other parts of the country and driving the struggles around immigration reform.”
Describing immigration as a long-standing political issue that is not simply the federal government’s responsibility, Willshire-Carrera emphasized the local context: The population of the city of Boston is 27 percent foreign-born.
Ramirez, a former ACLU staff attorney who works on a broad range of immigration issues and helped lead the DOJ’s review of Arizona’s law, remarked on how much has happened since last year.
During the panel, she explained why the Obama administration is challenging Arizona’s new provisions: principally, she said, because they pre-empt federal immigration law, interfere with the government’s ability to enforce immigration policy, and unduly burden lawful and undocumented immigrants.
The Arizona law diverts federal resources away from addressing high-priority targets and terrorism, and interferes with federal immigration priorities, Ramirez said.
Because this is a pre-enforcement challenge, she said the administration is not arguing that the law is unconstitutional on racial-profiling grounds. Rather, Ramirez and her colleagues are arguing that the Constitution does not permit a patchwork scheme of state immigration enforcement and that Arizona overstepped its legal bounds.
She said that in her casework in Arizona, she has heard from Hispanic youth who say they feel like second-class or alien citizens as a result of the law’s passage.
While she said the administration is optimistic about the 9th Circuit’s review, Ramirez said that without bipartisan support, Congress will not enact comprehensive immigration reform.
Millona said that after the Arizona law’s passage, legislators on Beacon Hill seriously considered legislation, including a statewide toll-free number to report illegal immigrants, that would have “brought the Arizona flavor” to the Bay State.
“It’s an election season … and immigration has been used as political theater,” Millona said. “Many Republicans who were once very vocal on comprehensive reform are not coming back to negotiate. They’re too worried about getting elected.”
Huntington said that immigration law, while “difficult and opaque,” is “fascinating on so many levels.” She agreed with Ramirez and Millona that the Arizona law is unconstitutional and strips rights from Arizonans, but said that such state laws “can cut both ways and be positive or negative.”
Huntington added that the Constitution is fundamentally silent on the regulation of immigration and that historically states and the federal government have played “a hybrid role.” She said, “There was really no federal immigration legislation until the last quarter of the 19th century.”
While statutory and structural pre-emption give the federal government precedence in a variety of areas, pre-emption in immigration is not “supported by the text of the Constitution or historical practices,” she said.
Also see HLS immigration clinic wins rehearing.
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