RACIALIZED ECONOMIC, CULTURAL, AND POLITICAL FOUNDATIONS AS DRIVING FORCES OF STATE ANTI-IMMIGRATION LAW

Shonnie Hur
ABSTRACT

A recurring pattern of discriminatory attitudes and anti-immigrant sentiments are reflected in the resurgence of immigration as the controversial issue at the forefront of political debates. The relapse of stronger nativism and racial discrimination is much more likely to occur during times of economic distress, which forms a floor for fiscal politics of immigration. This paper discusses how the interplay of the economy, politically provoked attention towards illegal immigration as a state and national issue, and white supremacy with long historical roots in the U.S., has been powerful sources in the recent controversial enactment of state-level anti-immigration law.

I.

Introduction

Throughout American history, the federal government has claimed exclusive power to regulate all aspects of immigration, arising from the plenary power doctrine and as an element of national sovereignty. The federal judiciary has taken a hands-off approach from involvement in

immigration policy, giving Congress almost unfettered discretion to exclude aliens altogether or prescribe the terms and conditions upon which they may enter and stay in this country.1 It has upheld every challenged federal statute regulating immigration, whether it be one discriminating on the basis of race, sexual orientation, sex, or political activity.2 Yet, despite such consistency in the U.S. Supreme Courts decisions confirming the principle of federal governments sole authority to regulate immigration, a growing number of states have been eager to find measures

Lapina v. Williams, 232 U.S. 78 (1914). Gabriel J. Chin, Is There A Plenary Power Doctrine? A Tentative Apology and Prediction for Our Strange But Unexceptional Constitutional Immigration Law, 14 GEO. IMMIGR. L.J. 257 (2000).
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to trim down the number of unauthorized immigrants by testing the limits of their immigration authority. Although the ailing economy and increased federal enforcement efforts have reduced the unauthorized immigrant population, the much needed comprehensive statutory immigration reform regrettably did not follow the 2008 elections. With a new round of elections approaching and a conservative political shift resulting from the 2010 state elections already in place, political debates addressing immigration reform and states need for stronger enforcement has intensified. In 2011, state legislators introduced a record breaking number of immigration-related bills, and though only a few states ended up passing these bills by years end, laws by Arizonas SB 1070 will likely continue to play a prominent role in states debates in 2012.3 For politicians, economic depression and rising class conflicts may create opportunities to attack unauthorized immigrants and minorities in election campaigns as a method for turning the publics attention to the dire need for immigration reform as a national issue, arguing that they would actively pursue protecting at least its own state residents. Having to appeal to as many potential voters as possible, one of the obvious benefits of spurring a controversy by endorsing anti-immigrant legislation is media attention. With millions of people frequently accessing the media through television or the internet, discussing the need for anti-immigrant policies will likely provoke the societys divided perspective on the unauthorized immigrant population. On the other hand, some politicians may simply be furthering their personal viewssome leading members of State Legislators of Legal Immigration (SLLI), a rather powerful organization that specializes in assembling legislative attacks on immigrants in states across the country, hold high
See State Immigration-Related Legislation; Last Years Key Battles Set the Stage for 2012, National Immigration Law Center (January 2012); see also Elena Lacayo, The Wrong Approach: State Anti-Immigration Legislation in 2011, The National Council of La Raza (2012).
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leadership positions in their state legislatures.4 On a related note, anti-immigration nativist views have a long history in the U.S., and economic fear has formed much of the anti-immigrant hostility existing today.5 Notwithstanding evidence to the contrary, common myths about the unauthorized immigrant population have also persisted, noticeably resurfacing during times of economic crisis.6 The most renowned controversy concerning state-level immigration legislation in recent years was triggered by Arizonas Support Our Law Enforcement and Safe Neighborhoods Act of 2010, better known as SB 1070 (as amended by HB 2162).7 Arizona Governor Janice Brewer signed SB 1070 into law on April 23, 2010, a sweeping anti-immigrant law bestowing broad policing duties and authorities to state and local law enforcement officials. Soon thereafter, the Department of Justice sued the state of Arizona, alleging that SB 1070 was preempted by its failure to comply with the federal enforcement priorities as specified by the Attorney General and the Secretary of Department of Homeland Security.8 On April 11, 2011, the U.S. Court of Appeals for the Ninth Circuit upheld a preliminary injunction that enjoined several provisions of

Heidi Beirich, Attacking the Constitution, State Legislators for Legal Immigration & the AntiImmigrant Movement, Southern Poverty Law Center (March 2011). 5 One of the well-known nativist movements is the Know Nothing or American Party, a political fraction that existed from 1845 through 1860. It was characterized by political xenophobia and antiCatholic sentiment. See Anbinder, Tyler. Nativism and Slavery: The Northern Know Nothings and the politics of the 1850s, Oxford University Press (1992). 6 One commonly observed misconception is that the immigrants are the cause of high unemployment rates. See The Racial Blame Game: Immigrants Are Not the Cause of High Unemployment and Low Wages Among Minority Workers, Immigration Policy Center (March 2011). 7 SB 1070, 2010 Ariz. Sess. Laws 113, amended by 2010 Ariz. Sess. Laws 211 (H.B. 2162, 49th Leg., 2d Sess. (Ariz. 2010). 8 United States of America v. State of Arizona, No. 10-01413 (D. Ariz. prelim. injunction granted Jul. 28, 2010); prelim. injunction affd, No. 10-16645 (9th Cir. April 11, 2011); petition for certiorari filed, No. 11-182 (Aug. 10 2011).
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SB 1070 from going into effect.9 Arizona has appealed to the Supreme Court, and the Supreme Court is expected to begin hearing oral arguments on April 25, 2012.10 Other states inspired by Arizonas law enacted copycat bills in 2011, thereby creating patchwork policies in the country, including Alabama, Georgia, Indiana, South Carolina, and Utah. All of these state anti-immigration laws share a common strategy called attrition through enforcement, which essentially urge undocumented immigrants to self-deport by making their lives unbearably difficult to sustain in the U.S.11 These states are facing similar lawsuits as those challenging Arizonas law, with judges presiding over the cases delaying their ruling until the Supreme Court hands down its decision in Arizonas case. To be sure, states are certainly justified in their increasing frustration with the unsuccessful efforts of the federal government in creating a comprehensive immigration reform. Over the past decade, struggle for an effective immigration reform has escalated, but by no means has creation of state-level immigration laws prove to be an realistic solution in achieving its purported goals of reducing illegal immigration.12 To win public support, these state laws have been erroneously marketed as legislation needed to combat crime and free up jobs for those authorized to work in the U.S.13

Id. Challenged provisions include S.B. 1070 Sections 2(b), 3, 5(C), and 6. Arizona, et al., Petitioners v. United States, U.S. Supreme Court No. 11-182, docketed on August 12, 2011; oral argument calendared for April 25, 2012. 11 Michele Waslin, Discrediting Self Deportation as Immigration Policy: Why an Attrition through Enforcement Strategy Makes Life Difficult for Everyone, Immigration Policy Center, Special Reports (February 2012). 12 Heather Benno, States rights invoked to justify harsh anti-immigration measures: immigrant rights struggle facing new hurdles, Liberation News (Jul. 12, 2011). 13 Frank Melon and Elizabeth Pitrof, Arizona S.B. 1070: Straw-Man Law Enforcement, 14 Harv. Latino L. Rev. 23 (2011).
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Part II provides a historical overview of immigration law in the U.S., and how nativist or white supremacists and racially-motivated movements have contributed to changes in immigration policy. The tension between state and federal governments concerning enforcement and regulation authority may have stemmed from several sources, particularly, the profound and perplexing query of constitutional justifications for broad federal powers over immigration, and the 287(g) program that nurtures partnerships between state and local law enforcement with the federal government. The question of who enforces U.S. immigration laws is addressed in Part III, accompanied by an analysis of how the federal government itself might have contributed to the fading line dividing federal and state authority over regulating immigration, beginning with the major historical roots that shaped the scope and sources of federal power to regulate immigration. Part IV discusses the politics behind current state immigration laws and how immigration has been at the forefront of political discussions for election campaigns. In states with a larger proportion of undocumented immigrants, proposing or enacting state immigration law is an opportunity to appeal to the majority of voting members in that state. Part V provides an overview of the fiscal impact SB 1070 and copycat legislations on states, much to the detriment of taxpayers, residents, and its own revenues.

II.

History of Anti-Immigration Laws in the US based on Racial DiscriminationMotivated by White Supremacy & Stronger Support During Times of Economic Distress

While the United States has been long recognized as a nation of immigrants, it also has a regretfully long history of racial discrimination. Immigrants have never been able to escape

being the easy scapegoat for perceived social or economic problems, and continue to be unfairly blamed for the declining economy, increased violence, and depletion of social resources despite studies and reports showing otherwise. 14 Immigrants already find their immigration status as downgrading their worth in U.S. society, with undocumented status as more subordinating or stigmatizing than lawful status, but discrimination, exploitation, and abuse are common issues that unskilled migrant workers must face.15 Despite the countrys endeavor to shift away from discriminatory notions, for instance, by creating hate crime laws punishing people for committing bias-motivated crimes, the rising number of hate groups and new state anti-immigrant laws is thwarting the country from moving towards fairness and equality.16 Discriminating against those that are racially different or foreign-born from the White Protestant norm is a pervasive concept in the history of U.S. immigration law, marked by recurrent nativist outbursts in response to perceived soaring rates of immigrants.17 Immigration law in the U.S. has
See Rob Paral & Associates, The Unemployment and Immigration Disconnect: Untying the Knot, Immigration Policy Center (2009); Heidi Shierholz, Immigration and Wages: Methodological advancements confirm modest gains for native workers, Economic Policy Institute, Briefing Paper No. 255 (Feb. 2010) (immigrants contribute to labor market efficiency and long-term economic growth, as they consume goods and services which in turn creates more jobs). 15 See Kevin R. Johnson, Race Matters: Immigration Law and Policy Scholarship, Law in the Ivory Tower, and the Legal Indifference of the Race Critique, U. ILL. L. REV. 525, 535-46 (2000); Division for Social Policy Development, Social Dimensions of International Migration, United Nations Dept. of Economics and Social Affairs (2004). 16 Mark Potok, The Patriot Movement Explodes, Southern Poverty Law Center, Intelligence Report Issue No. 145 (Spring 2012); Anti-Defamation League, An Introduction to Hate Crime Laws (explaining that state hate crime statutes are generally penalty enhancement statutes) available at http://www.adl.org/combating_hate/Introduction-to-Hate-Crime-Laws.pdf; see also Cristina Costantini, Anti-Latino Hate Crimes Rise As Immigration Debate Intensifies, Huffington Post, Latino Voices (Oct. 18, 2011) available at http://www.huffingtonpost.com/2011/10/17/antilatino-hate-crimes-rise-immigration_n_1015668.html. 17 Oksana Yakushko, Xenophobia: Understanding the Roots and Consequences of Negative Attitudes toward Immigrants, Division of Counseling Psychology of the American Psychological Association (January 2009).
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been well-known for its cyclical and ambivalent nature.18 The current antagonism against the presence of illegal aliens in the United States is part of this recurring vicious cycle that transpires with greater force during economic crisis, and seems to be often linked to prevailing social evils. Congress began passing a number of acts regulating naturalization in 1790, with the first act permitting a liberal grant of citizenship to immigrants. The Naturalization Act revised requirements for obtaining U.S. citizenship, which included residency requirements that fluctuated from five years to fourteen years in 1798, which was accompanied by the passage of the Alien and Sedition Act. The Aliens Enemies Act essentially gave the President the power to deport any citizen he deemed to pose a threat to the nation, and was not called into use until the War of 1812.19 As to the previous fourteen-year residency requirement for acquiring U.S.

citizenship, a new Naturalization Act permanently re-established the five-year residency requirement provision of the 1790 Act.20 Immigration surged during the 1830s, initially from northern and western Europe, marking the beginning of an era of mass immigration. The first wave was the rushing in of Irish and Germans during the European depressions of 1840s. 21 The most salient problem was religionan overwhelming majority of the countrys population was Protestant, and these Catholics had brought back memories of the Catholic-Protestant dissonance that had dominated the political and social spheres of life in Europe before they freed themselves from the Popes authority.
Kevin R. Johnson, Opening the Floodgates: Why America Needs to Rethink its Borders and Immigration Laws, New York University Press (2007). 19 Lawrence H. Fuchs and Susan Forbes Martin, Select Commission on Immigration and Refugee Policy: U.S. Immigration Policy and the National Interest, Staff Report 161-216 (1981). 20 Act of April 14, 1802, 2 Stat. 153, Section 4 (1802). 21 See Joyce Vialet, A Brief History of U.S. Immigration Policy, U.S. Library of Congress, Congressional Research Service, CRS Report No. 80-223 EPW (1980); Elizabeth S. Rolph, Immigration Policies: Legacies from the 1980s and Issues for the 1990s, Program for Research and Immigration Policy, RAND Corporation Report Series (1990).
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Anti-Catholic riots ensued in an attempt to prevent foreigners from participating in the political process, but ultimately failed. The restrictionist trend and the potential for placing more

stringent citizenship requirements was overcome by the countrys economic needs.22 The country was in dire need of labor after the Civil War to extract coal and iron which were necessary to building railroads and cities. A heavier flow of immigrants was underway, with millions entering the country each decade. By the beginning of the century, Irish immigration became a familiar trend, and the previous aggression had subsided. Once a group of new immigrants became more familiar, the negative attention and the anti-immigrant resentment shifted to newer immigrants. In 1868, spurred by the need for cheap labor and trade, the U.S. and China signed the Burlingame Treaty, also known as the Burlingame-Seward Treaty of 1868, to establish formal friendly relations between the two countries.23 The agreement essentially meant that the U.S. government would accept Chinese immigration and that, in turn, the Chinese government would allow emigration, which had been a crime punishable by death.24 While there was little nativism expressed initially at the time the Burlingame Treaty was signed, once the transcontinental railroad was completed one year later, the thousands of Chinese workers were no longer needed, adding fuel to anti-Chinese animosity.25 Some feared that the more than 100,000 Chinese who had immigrated from mainland China planned not to return to their home country, and were

Supra Note 16. See Charles J. McClain, In Search of Equality: The Chinese Struggle Against Discrimination in Nineteenth-Century America, University of California Press (1994). 24 Hiroshi Motomura, Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States, Oxford University Press (2006). 25 Elaine Low, An Unnoticed Struggle: A Concise History of Asian American Civil Rights Issues, Japanese American Citizens League (2008).
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planning to steal jobs from American workers.26 In response, Congress made attempts to limit Chinese immigration by suggesting the renegotiation of the Burlingame Treaty.27 In an attempt to impose some restrictions on Chinese immigration, the two countries entered into a supplementary treaty that allowed United States to regulate, limit, or suspend immigration of Chinese workers whenever their entry into the country would threaten the countrys interest or endanger the good order. Some states believed this to be an insufficient measure, continuing to demand tougher restrictions on Chinese immigration and even began acting out on its own. In California, many unemployed laborers and racist labor unions fostered bigotry against the Chinese, blaming the Chinese for their economic woes. The demonization of the Chinese and anti-Chinese nativism was led by California, which passed local and statewide restrictions that set forth local and statewide restrictions requiring towns to remove Chinese from their city limits.28 As mentioned above, when the transcontinental railroad was completed and a depression followed, the once welcomed Chinese immigrants came under attack, focusing on their inability to assimilate. Of particular concern was the alleged criminality of the Chinese, despite the lack of crime statistics to support such accusations.29 Ultimately, the U.S. government passed its first restrictionist, racial immigration law in 1882, the Chinese Exclusion Act,30 barring Chinese laborers from immigration for ten years, and stood in place until it was repealed by the

Id. Id. 28 California Constitution, Article XIX, 1 provided that, [t]he Legislature shall prescribe all necessary regulations for the protection of the State, and the counties, cities, and towns the burdens and evils arising from the presence of aliens who are or may become vagrants, paupers, mendicants, criminals, or invalids afflicted with contagious or infectious diseases[.] (1879). 29 Fuchs, supra note 6. 30 Chinese Exclusion Act of 1882, 22 Stat. 59 (1882).
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Magnuson Act in 1943. 31

The Act inflamed anti-Chinese madness, violence, and mass

expulsion, and some politicians called the Chinese Exclusion Act an act of humanity, and the subsequent Immigration Act of 1924 further widened the breadth of the institutionalized discrimination to all Asians within the country.32 The worst riot against the Chinese took place in September of 1885 when a racist, violent mob killed 28 and destroyed valuable property when Chinese workers refused to join a strike in Wyoming.33 With the shortage of jobs on the rise with the entry of aliens and the accompanying antiimmigrant attitude amongst many Americans, Congress passed the National Origins Act in 1924, setting a numerical ceiling for immigrants from different nationalities.34 The Act, as it was initially passed, set an annual limit for the number of Europeans and a complete ban on Japanese immigration, while exempting Mexicans and other western hemisphere residents from quota.35 The quota system was left intact until World War II, when changes were made, yet again, on the basis of need for labor of aliens. The U.S. negotiated a temporary workers program with Mexico to fill in wartime employment vacancies, and Congress repealed the previous ban on Chinese immigration. By the early 1960s, a call for immigration policy reform was led by the civil rights movement, focusing on equal treatment regardless of ones race or nationality.36 This led to the enactment of

Magnuson Act of 1943, Pub. L. 78-199, 59 Stat. 600 (1943). Supra note 25 at pg. 4. 33 Haiming Liu, Chinese Exclusion Laws and the U.S. China Relationship, California State Polytechnic University (2003). 34 Immigration Act of 1924, Pub.L. 68-139, 43 Stat. 153 (1924). 35 Mae M. Ngai, Impossible Subjects: illegal Aliens and the Making of Modern America (Politics and Society in Twentieth Century America), Princeton University Press (2005). 36 Supra note 25 at pg. 10 (The 1960s marked an overhaul of the way America Perceived race relations and politics, with the civil rights movement dissecting and questioning issues of racial segregation, anti-miscegenation laws, voter disenfranchisement, hate crimes and employment
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the Immigration and Naturalization Act Amendments in 1965, which abolished the earlier quota and established a new immigration policy based on reunification of immigrant families and attracting skilled workers to the U.S. workers.37 Throughout the 1980s and 1990s, the topic of illegal immigration made its way into mainstream political discussions and debates, as a huge wave of immigrants poured into the U.S. In

response, Congress enacted the Immigration Reform Act of 1986 (IRCA), which was designed to improve border control enforcement measures and create more possibilities to seek legal immigration.38 IRCA was focused on what Congress might have believed to be the root source of illegal immigrationU.S. was an employment magnet, attracting many immigrants, especially from Mexico, by entering crossing the land border.39 Thus, IRCA also provided for sanctions on employers who knowingly hired a person who was not authorized to work in the U.S.40 The next welcoming law was the passage of the Immigration Act of 1990, which increased the annual numerical limits of legal immigrants allowed to enter the U.S.41 A lottery program that assigned a random number of visas was also created by the 1990 Act, which was designed to assist immigrants from countries where visas were not often granted by the U.S.42 It also provided exceptions to the English literacy testing requirement for naturalization, which had been the law since the passage of the Naturalization Act of 1906. 43
discrimination, and legislative changes were made to ease laws that restricted immigration, opening the doors for new immigrants.). 37 Immigration and Naturalization Act of 1965, Pub. L. 89-236, 79 Stat. 911 (1965). 38 Immigration Reform and Control Act of 1986, Pub. L. 99-603, 100 Stat. 3359 (1986). 39 Susan F. Martin, A Nation of Immigrants, Cambridge University Press, 1st Ed. (2010). 40 Id. 41 Immigration Act of 1990, Pub. L. 101-649, 104 Stat. 4978 (1990). 42 Id. 43 Id.

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Unfortunately, the progress in passing more immigrant-friendly laws came to a halt when an economic recession hit the country during the early 1990s, which divided the line of the general consensus that had led to the enactment of the Immigration Act of 1990. In the 19th century, the U.S. decided to close its borders in response to the high influx of illegal immigrants. As the issue of illegal immigration began to resurface in the 1990s, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996, which made vast changes to the grounds for exclusion and removal of lawful permanent aliens and undocumented immigrants.44 The Act was intended to deter illegal immigration by, among other things, imposing harsher penalties for violating immigration laws, strengthening border enforcement, and reducing immigrants access to the courts.45 It also eliminated basic relief from deportation for long term permanent residents who have been convicted of an aggravated felony and barred identified undocumented immigrants from future entry into the U.S. 46 Even more stringent control over immigration seemed warranted in the wake of the terrorist attacks on September 11, 2001. To combat threat to national security, President George W. Bush signed the USA PATRIOT Act47 into law within weeks of the attacks, which gave the federal government broad power to virtually detain suspected terrorists indefinitely, mainly targeting

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. 104208, 110 Stat. 3009-546 (1996). 45 Id. 46 8 U.S.C. 1227(a)(2)(A) (defines an aggravated felony as murder, rape, money laundering, or other crime of violence that carries a term of imprisonment of at least one year) (2006). IIRIRA also made it more difficult to apply for asylum and prevented certain immigrants from receiving government benefits such as Social Security. 47 USA PATRIOT Act, Pub. L. 107-56, 115 Stat. 272 (2001). President Barack Obama signed a four-year extension to some of the key provisions of the USA PATRIOT Act on May 27, 2011. See Obama Signs Last-Minute Patriot Act Extension, Fox News (May 27, 2011), available at http://www.foxnews.com/politics/2011/05/27/senate-clearing-way-extend-patriot-act/%7Cdate.
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Muslims and Arabs.48 Currently being at war in Iraq only deepens public enmity towards foreigners and immigrants, and thus, it seems no accident that immigration restriction has moved to the forefront in the name of protection of national security.

III.

The Eroding Line between Federal & State Immigration Power

(a) Enumerated Constitutional Power

In recent years, State and local governments have progressively attempted to intervene in the regulation of immigration and immigrants. Despite much of the heated public debates over this controversy, the federal government undeniably remains the prime source of immigration matters. Although nothing in the U.S. Constitution explicitly provides unequivocal power to regulate immigration to the federal government, immigration might not have been the Framers overriding concern in establishing a national government. 49 With no direct reference to immigration, a constitutional justification for giving unfettered discretion and authority of the federal government over immigration has been a challenge. In the early immigration cases, the Supreme Court was faced with the difficult task of identifying and defining the source and scope of the federal governments exclusive authority and plenary power over immigration.50
There was a sharp crime in the number of Anti-Muslim hate crimes in 2010the highest level of anti-Muslim hate crimes since the year of the September 11 attacks. See FBI: Dramatic Spike in Hate Crimes Targeting Muslims, Southern Poverty Law Center, Intelligence Report, Issue No 145 (Spring 2012). 49 Sarah H. Cleaveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power Over Foreign Affairs, 81 TEX. L. REV. 1, 81 (2002). 50 See e.g., Passenger Cases, 48 U.S. 283, 12 L.Ed. 702 (1849); Head Money Cases, 112 U.S. 580, 5 S.Ct. 247, 28 L.Ed 798 (1884); Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941); Nishimura Ekiu v. United States, 142 U.S. 651, 12 S.Ct. 336, 35 L.Ed. 1145 (1892).
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One source of federal power has rested on enumerated powers. That the federal government is one of enumerated powers, with power to exercise its delegated powers that may be necessary and proper, has been a fundamental principle of U.S. constitutional law.51 Federal power under the enumerated powers doctrine consists of five separate principles. The first is the Commerce Power under Art. I, 8, cl. 3 of the Constitution, which authorizes Congress to regulate Commerce with foreign Nations, and among the several States. The Supreme Court invalidated numerous state statutes with the intent to regulate immigration by taxing or imposing other obligation on carriers.52 The second enumerated source was the naturalization power, under Art. I, 8, cl. 4 of the Constitution. This clause grants Congress the power to establish an uniform Rule of Naturalization, and expressly delegates power to Congress in order to prevent potential controversies resulting from separate state laws for conferring citizenship.53 The third is the Congress power to declare War under Art. I, 8, cl. 11. Power to declare law necessarily designates the ability to prevent the entry or expel an enemy aliens residence in the U.S. This power remains good law, and was initially granted by the Alien and Sedition Act.54 Another source derived from the Constitution is the Migration and Importation Clause, which has been interpreted as allowing Congress to prohibit migration or importation after 1808. 55 Although the Constitution does not explicitly mention foreign affairs, the power to conduct foreign affairs has

McCulloch v. Maryland, 17 U.S. 316, 324, 4 L.Ed. 579 (1819). See Chy Lung v. Freeman, 92 U.S. 275, 23 L.Ed. 550 (1876). 53 J. Kettner, The development of American Citizenship, 1608-1870, at 224-25 (1978). 54 See Part II. 55 U.S. Const. Art. I, 9, cl. 1. However, historical context suggests that this was meant to deal with the slave trade.
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been considered an additional enumerated, or more properly, an implied power of the Executive Branch. 56 (b) Scope of Federal Power to Regulate Immigration: The Plenary Power Doctrine The plenary power doctrine has a very lengthy history and has served the vital purpose of preserving the regulation of immigration squarely within the authority of politically accountable actors, thereby assuring uniformity of the countrys immigration system. As described above, federal power to regulate immigration is rather difficult to identify within the Constitution, and the plenary power doctrine is an oft cited additional source for congressional and federal executive power over immigration. Under the plenary power doctrine, Congress and the

executive branch have broad and often exclusive authority over immigration decisions. Accordingly, courts should only rarely, if ever, and in limited fashion, entertain constitutional challenges to decisions about which aliens should be admitted or expelled.57 The Supreme Court has pronounced the federal governments exceedingly broad power over all aspects of immigration by invoking the judicially created plenary power doctrine, for example, in dismissing and rejecting constitutional challenges to the racially discriminating Chinese Exclusion Act.58 The Court has also accentuated its lack of power to review decisions made by Congress in the exercise of its plenary power in creating or revising criteria for immigration

In Chae Chae Ping, Justice Field noted that [f]or national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power. Chae Chae Ping v. United States, 130 U.S. 581, 32 L.Ed. 1069, 9 S.Ct. 623 (1889). 57 Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545, 547 (1990) 58 Chinese Exclusion Case, 130 U.S. 581 (1889).
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admissions, stating that over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens. 59 Based on both the Constitutional clauses discussed above in section (a) and the plenary power doctrine, it has been claimed that courts and scholars largely agree that power to regulate immigration exclusively falls within the federal governmentlargely based on the frequently cited statement by the Supreme Court in De Canas v. Bica that the [p]ower to regulate immigration is unquestionably exclusively a federal power.60 Some have also argued that recent decisions have casted doubt on the Courts formerly unwavering attitude towards immigration laws, especially after the Court upheld an earlier Arizona law that targeted employers who hired undocumented workers.61 (c) The Cracks in the Plenary Power Doctrine On the other hand, arguments have been made that room still exists for states to take an active role in immigration policymaking, notably by Kris Kobach, the architect of the notorious SB 1070, who pointed to a different sentence in the same case where the Supreme Court stated, [b]ut the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised.62 Kobach interpreted this statement to be a simple differentiation by the Court between legislative enactment and executive enforcement, and hence, he argues, that the court

Fiallo v. Bell, 430 U.S. 787, 797 (1977); see also Gabriel Chin, Is there a Plenary power Doctrine? A Tentative Apology and Prediction for Our Strange but Unexceptional Constitutional Immigration Law, Supra note 2. 60 De Canas v. Bica , 424 U.S. 351, 354 (1976). 61 Chamber of Commerce v. Whiting, 563 U.S. ___, 131 S. Ct. 1968 (2011) 62 Id. At 354.
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has left the door open for state participation in enforcement of immigration regulations.63 To be sure, the Supreme Court has given some latitude to state governments when an issue concerns a state law regulating undocumented immigrants. This Supreme Courts limited inclination in upholding certain state laws may be attributable to states broad policing powers.64 Some scholars have suggested that there has been a decline in unconstrained broad plenary power over immigration, especially after the Supreme Court handed down several cases in 2001.65 Aside from the judiciarys impact on determining the level of allowable state governance over immigration policymaking, Congress decision in 1996 to include INA 287(g) as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) might have played a substantial role in the soaring numbers of recently enacted or proposed state-level immigration legislation.66 Section 287(g) authorized the Department of Homeland Security (DHS) to enter into agreements with state and local law enforcement agencies to enforce federal immigration law.67 Over the past decade and a half, the Immigration Customs Enforcement (ICE) Office has continuously negotiated 287(g) agreements authorizing state and local law enforcement officials to

Kris W. Kobach, The Quintessential Force Multiplier: The Inherent Authority of Local Police to Make Immigrant Arrests, 69 ALB. L. REV. 179, 231 (2005). 64 Huyen Pham & Pham H. Van, The Economic Impact of Local Immigration Regulation: An Empirical Analysis, 32 Cardozo L. Rev. 485 (2010). 65 See e.g., Peter J. Spiro, Explaining the End of Plenary Power, 16 GEO. IMMIGR. L.J. 339 (2002). 66 8 U.S.C. 1357. 67 Id. DHS was initially created in response to the September 11 attacks, and assumed the duties of the Immigration and Naturalization Services (INS) in March of 2003. During the process of transferring INS duties to DHS, the enforcement and services functions were divided into two separate agencies: Immigration Customs Enforcement (ICE) and Citizenship and immigration Services (CIS). See Department of Homeland Securitys website: www.dhs.gov/xabout (accessed Mar. 21, 2012).
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participate in enforcing federal immigration policiessubject to undertaking special training under ICEs supervision. By June 2011, sixty nine agreements were effected.68 According to the DHS budget summary for FY 2013, the Obama administration intends to cut funding for the 287(g) program, 69 based on its belief that the Secure Communities Programa cornerstone of ICEs immigration enforcement efforts in which fingerprints of persons arrested and booked in a police station or prison are sent to the Federal Bureau of Investigation (FBI) from a states identification bureau to check for matches in criminal databasesis a more costeffect measure than the 287(g) program.70 Nevertheless, a plausible argument could be made that, however small the collaboration between ICE and local law enforcement officials, the very existence of such program opened the door to the passage of SB 1070 and copycat bills. Despite the best intentions behind the creation of this programs, the nations immigration crisis might be better addressed by devising a scheme with better defined boundaries, albeit easier said than done.

IV.

Current Status and Fiscal Impact of State Anti-Immigration Law

(a) Background of Arizona SB 1070 and Copycat Bills In April of 2010, Arizona passed SB 1070 (Support Our Law Enforcement and Safe Neighborhoods Act), which at the time of its passage, was said to be the broadest and strictest

The Performance of 287(g) Amendments FY 2011 Update, Office of Inspector Gen. Dept of Homeland Sec. (2011). 69 FY 2013 DHS Budget Request Summary, available at http://www.dhs.gov/xlibrary/assets/mgmt/dhs-budget-in-brief-fy2013.pdf 70 Michele Waslin, The Secure Communities Program: Unanswered Questions and Continuing Concerns, Immigration Policy Center, Special Reports (updated Nov. 2011). See also ICEs website http://www.ice.gov/secure_communities/.
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immigration measure in the country.71 According to Arizonas statement of legislative intent, SB 1070 was envisioned to establish attrition through enforcementa strategy to make living life as an undocumented alien in the United States to become sufficiently difficult enough to drive the unauthorized population out of the countryas its official state-wide public policy.72 The law was to take effect on July 29, 2010, but the U.S. Department of Justice filed suit to preliminarily enjoin enforcement of several sections of SB 1070, and a federal district court granted a temporary injunction on the 11th hour.73 Arizona appealed, and in April of 2011, the U.S. Court of Appeals for the Ninth Circuit affirmed the district courts decision.74 The Supreme Court has granted Arizonas petition on December 9, 2011, and will begin hearing oral arguments in April 25, 2012. Only a few provisions in SB 1070 will be subjected to the Courts scrutiny for whether they unconstitutionally usurp the federal governments authority to regulate immigration law and enforcement. Under the Supremacy Clause of Article IV of the U.S. Constitution, whenever Congress creates a regulatory scheme through legislation, state laws that conflict with federal laws will be preempted (conflict preemption). The Supremacy Clause has empowered the

federal government to explicitly preempt a particular area over which it has authority, thereby

S.B. 1070, 49th Leg., 2d Reg. Sess. (Ariz. 2010), amended by H.B. 2162, 49th Leg., 2d Reg. Sess. (Ariz. 2010), available at http://www.azleg.gov/alispdfs/council/sb1070-hb2162.pdf. 72 SB 1070 1 (2010) (The legislature declares that the intent of this act is make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.). 73 United States v. Arizona, 703 F. Supp. 2d 980 (D. Ariz. 2010). 74 United States v. Arizona, 641 F.3d 339 (9th Cir. 2011).
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depriving states the authority to create or enforce their own laws in that same area. 75 However, according to Kris Kobach, the author of Sb 1070, [b]ecause S.B. 1070 proscribes precisely the same conduct that is prohibited by federal law, Arizona law and federal law are in perfect harmony. Conflict pre-emption cannot occur.76 The validity of his rationale will soon be tested under the national spotlight in the upcoming hearing. One of the four challenged provisions is Section 2(B), commonly referred to as the show me your papers section, which requires Arizona law enforcement officials to verify the immigration status of any person stopped, arrested, or detained under state or local law if the official has reasonable suspicion that the person is present in the country unlawfully.77 Section 3 makes it a crime to violate federal law requiring certain aliens to apply for and maintain federal registration papers. Violations of this provision are punishable by up to twenty days

imprisonment for a first offense and thirty days imprisonment for subsequent violations. 78 Section 5(C) makes it a state crime for an unauthorized immigrants to apply or engage in work as an employee or independent contractor.79 Lastly, section 6 allows state police officers to make a warrantless arrest of any person whom they find probable cause to believe has committed a crime that makes them removable form the United States.80 While Arizona maintains that the aforementioned four provisions are designed to enhance an enforcement system where state and local officials operate as part of the federal governments

See Boggs v. Boggs, 520 U.S. 833, 844 (1997) (States are not free to change [federal laws] structure and balance.). 76 Kris W. Kobach, Arizonas S.B. 1070 Explained, 79 UMKC L. Rev. 815, 821 (2011). 77 Ariz. Rev. Stat. Ann. 11-1051(B). 78 Ariz. Rev. Stat. Ann. 13-1509. 79 Ariz. Rev. Stat. Ann. 13-2928(C). 80 Ariz. Rev. Stat. Ann. 13-3883.
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targeted priorities, the language of these provisions seem to suggest otherwise.81

Even direct

cooperation by the states in federal immigration enforcement under INA 287(g)82 has proven to be problematic due to insufficient federal supervision over state action as well as inability of state and local officials to properly implement federal immigration law.83 Proponents of the bill argue that federal government has failed to adequately enforce immigration law and that SB 1070 is a necessary measure to help reduce crime, drug trafficking, create a safer neighborhood, and more jobs for Americans. On the other hand, opponents have attacked the bill as having legalized racial profiling and opening the door to harassment against the Latino community regardless of their immigrant status.84 More than half of the country proposed similar bills but only five states ultimately passed copycat bills, including Utah, 85 Alabama, 86 Georgia, 87 Indiana, 88 and South Carolina. 89 The majority of those that contemplated similar anti-immigration legislation, presumably declined to take any action after observing not only the immediate adverse fiscal impacts, but the mounting legal challenges that have halted the laws from being fully implemented signals that any attempt to propose such a law would be inconsequential. (b) Devastating Impact on States Economy (1) Georgia HB 87 Georgia Illegal Immigration Reform and Enforcement Act of 2011 as Exemplar of Adverse Consequences of Adopting SB 1070 Copycat Law
Brief of the American Bar Association as Amicus Curiae in Support of the Respondent, State of Arizona et al., v. United States, No. 11-182 No 11-182 (US Supreme Court, filed Mar. 26, 2012). 82 See Part II. 83 Id. 84 Kate M. Manuel et. al., State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizonas S.B. 1070, Congressional Research Service (2011). 85 H.B. 497, 2011 Leg., Gen. Sess. (Utah 2011). 86 H.B. 56, 2011 Leg., Reg. Sess. (Ala. 2011). 87 H.B. 87, 151st Gen. Assemb., Reg. Sess. (Ga. 2011). 88 S.B. 590, 117th Gen. Assemb., Reg. Sess. (Ind. 2011). 89 S.B. 20, 119th Gen. Assemb., Reg. Sess. (S.C. 2011).
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Georgia took a miscalculated measure in an effort to solve the illegal alien problem with one fell swoop. Georgias HB 87 was passed in the last hours of the legislative session in 2011, and was signed into law by Republican Governor Nathan Deal on May 13, becoming the third state to pass a SB1070 type bill. Notwithstanding the foreseen damage of the law, Georgia State Representative Matt Ramsey, who co-authored the bill, said after his states bill was passed, its a great day for Georgia. We think we have done our job that our constituents asked us to do to address the costs and social consequences that have been visited upon our state by the federal governments failure to secure our nations borders. 90 Representative Ramseys enthusiasm was short-lived, as it was bound to be met with protests and legal challenges. A federal judge blocked several provisions of the law, and the 11th Circuit Court of Appeals is awaiting the Supreme Courts ruling in AZ v. US case before ruling on the states appeal. Although the bill did not go into effect in its entirety, the unintended consequences of the bill has already manifested itself most strikingly in the agriculture sector by causing mass shortage of workers. (2) Agricultural Industry & Economic Paralysis Georgia has been one of the states with the fastest growing immigration population in the country during the past decade and currently has one of the largest unauthorized populations in the country.
91

By discrediting the importance of immigrant laborers, it was bound to suffer

the economic damage stemming not only from the burden of implementing the law and shedding the expense of legal fees associated with court fees to defend it, but also losing much
Seth F. Wessler, Welcome to the Wild, Wild South: Georgia Passes SB 1070 Copycat Bill, Colorlines News, available at http://colorlines.com/archives/2011/04/georgia_legislature_passes_sb_1070_copycat_bill.html (April 15, 2011). 91 The Unauthorized Population Today: Number Holds Steady at 11 Million, Three-Fifth Have Been Here More Than a Decade.
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of its most valuable source of revenues: crop value. 92 Although putting a precise number on economic losses is difficult, the Center for American Progress estimates that Georgia will undergo an estimated annual loss of $797 million in crop value.93 The new extensive Report issued in January 3, 2012, by the Georgias State Department of Agriculture, highlighting effects and making recommendations, as mandated by HB 87, serves as an example to largely agricultural states considering passing a similar bill.94 Agriculture is a key industry in many states, including Georgia, and losses in the agricultural sector takes a rippling effect throughout a states entire economy. HB 87 has already taken a huge toll in the agricultural sector, which is the states oldest and largest industry. According to the Georgia Farm Bureau, the agricultural business contributes at least $65 billion annually to Georgias $786.5 billion economy. Not only has Georgia had one of the fastest growing immigrant populations in the country during the last decade, it has been devastated by the millions of dollars of produce that has been left to rot in the fields, as numerous workers failed to show up to work shortly after HB 87 was passed.95 The state has yet to find an appropriate solution to worker shortages. To be sure, Governor Deal has even proposed using prison parolees to fill farm vacancies after receiving the initial legislatively mandated report from the Department of Agriculture in June of 2011 that cited labor shortages, and admitted that even this desperate measure would only be a partial solution. 96 Perhaps it would be best for state legislators to take Dr. Ral Hinojosa-Ojedas
Tom Baxter, How Georgias Anti-Immigration Law Could Hurt the States (and the Nations) Economy, Center for American Progress (October 2011). 93 Id. 94 Georgia Department of Agriculture, Report on Agriculture Labor (January 2012). 95 Supra note 92. 96 Republican Governor Deal offered his proposalafter his office released a state survey showing that over 11,000 jobs were unfilled in the states farm labor marketto use parolees to fill up the
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advice that, if state legislators really intend to promote the best interests of their constituents, they should focus instead on holding their federal counterparts responsible for reforming immigration laws, instead of proposing drastic measures that may only be a means to an end.
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V.

Politics Behind State Anti-Immigration

The cyclic nature of immigration politics may have resulted from, at least in part, from the wide discrepancy in popular opinion and collective attitude shaped by economic turmoil, political tensions, and other social stresses, such as the communal fear of terrorism after the dismaying September 11, 2001. With respect to the political underpinnings embedded in the development of immigration law, it should come as no surprise that negative images and intolerance of immigrants in popular culture that appear in the forms of nativism and racism, has heavily influenced and contributed to politically constructed restrictionist measures. When anti-

immigrant sentiment dominates the political process, anti-immigration law and exclusionary devices such as the former quota system are apt to emerge, albeit in more subtle forms of excluding or removing disfavored groups owing to modern consciousness of racial sensibilities.
98

One of the ways todays popular American culture demonizes current and prospective immigrants is through extremist rhetoric use of stereotyping and labeling them as illegal aliens. Reference to undocumented immigrants as illegals or illegal aliens has itself caused
unfilled jobs as a partial solution to Georgias farm labor shortage. See Jeremy Redmon, State survey: 11,080 farm jobs unfilled; Governor suggests putting people on criminal probation to work, AJC News (Jun. 14, 2011). 97 Ral Hinojosa-Ojeda, Raising the Floor for American Workers: The Economic Benefits of Comprehensive Immigration Reform, Immigration Policy Center (January 2010). 98 Kevin R. Johnson, Race, the Immigration Laws, and Domestic Race Relations: A Magic Mirror into the Heart of Darkness, 73 IND. L.J. 1111 (1998).

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considerable scholarly debate, showing how the power of words has meaning especially when it comes to discussing a divisive issue like immigration. 99 By accentuating the illegality of unauthorized immigrants presence in the country, politicians seem to have found another avenue to boast the potential success the state will enjoy if they won their votes. The political ploy of putting excessive weight on the need for improved border control and reinforce immigration enforcement on the state level is a misguided way that has done much more harm to the country than any good. Border states or states that have a larger proportion of unauthorized immigrants have focused on the need for better border control and enforcement, and electoral candidates and politicians may see advocacy of SB 1070-type law as a great source for winning support from state constituents and voting members. However, SB 1070 and copycat bills have done much more harm than good, and should serve as a model of what not to do. The inevitable devastating ramifications of passing such laws will only put more burden on taxpayers and a negative fiscal impact is inevitably forthcoming. With an immigrant-hostile legislative Republican majority, most of the Republican Party may not want undocumented immigrants to become regularized or naturalized, as that would provide

is Acceptable: Undocumented vs. Illegal Immigrant?, National Public Radio (Jan. 7, 2010) (debate between syndicated columnist Ruben Naavarrette and Kevin Johnson, Dean of UC Davis School of Law over whether illegal immigrant is a loaded term that carries sufficient power to be degrading or dehumanizing). Transcript for debate recording available at http://www.npr.org/templates/story/story.php?storyId=122314131. See also The Times style: illegal immigrant or undocumented immigrant, not illegal alien, Los Angeles Times, available at http://articles.latimes.com/2011/sep/03/opinion/la-le-postcript-20110903 (Sept. 3, 2011).
99 Which

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some reassurance that the politically disadvantaged immigrants and other minorities lacking access to the political process would not 100 Anti-immigrant advocates are quite capable of reinvigorating immigration debate by creating new coalition, and according to the Anti-Defamation league, these coalitions often avoid using blatantly racist language while maintaining the stance that illegal immigrants should be held responsible for societal ills. 101 And, with the Republican party holding an outright majority after the United States gubernatorial, state, and local office elections in 2010, Republican restrictionists can now serve as an easily accessible terminal for these anti-immigrant coalitions. Anti-plenary and anti-immigrant advocates, including partisan politicians, have influenced the growing perception that the countrys immigration system is broken, perhaps while also embracing the idea of piecemeal state-level immigration law tailored to supposed particular necessities for stronger devices to tighten enforcement and border control.102 Many politicians engage in debates and actively participate in proposing or endorsing anti-immigration laws, but a number of outspoken politicians holding leadership positions in their legislatures are actually self-proclaimed nativists or patriots.103

See Miryam Hazan, Supreme Court Should Strike Down Arizona SB 1070, Policymic, Politics (April 22, 2012), available at http://www.policymic.com/debates/7497/supreme-court-should-strikedown-arizona-sb-1070-provisions. 101 Anti-Defamation League, Immigrants Targeted: Extremist Rhetoric Moves into the Mainstream, ADL Report (2008). 102 Jon Feere, Plenary Power: Should Judges Control U.S. Immigration Policy, Center for Immigration Studies (2009). 103 Heidi Beirich, Attacking the Constitution, State Legislators for Legal Immigration & the AntiImmigrant Movement, Southern Poverty Law Center (March 2011).
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A four year old organization named the State Legislators for Legal Immigration (SLLI) has an ongoing plan of devising legislative attacks on immigrants throughout the country.104 A dozen of these members have high ranking roles in their own respective state legislatures, and as one article notes, SLLI is taking a leading role in fostering xenophobic intolerance in statehouses across the nation, and has attribute[d] to illegal aliens what it describes as increasingly documented incidences of homicide, identity theft, property theft, serious infectious disease terrorism, and growing cost to taxpayers.105 The Republican State Rep. Daryl Metcalfe has demonized illegal aliens as a threat to personal safety and economic health, and has noted that there is a working partnership with the Federation for American Immigration Reform (FAIR)an organization that has been listed as a hate group by the Southern Poverty Law Center (SPLC) since 2007. 106 More importantly, Russell Pearce, who both authored SB 1070 that was written by FAIR lawyers and was head of the Arizona State Senate until earlier this year, has been an active participating member of SLLI. Kris Kobach of the Immigration Reform Law Institute, which is FAIRs legal arm, also took a significant role in creating SB 1070.107 Organizations like FAIR illustrates how former and present state legislators and high ranking officials have actively partaken in developing strategies, mainly through the use of media, to push racist conspiracy theories or spread alternative theories to bolster the superiority of and the

See SSLIs website at http://www.statelegislatorsforlegalimmigration.com. SSLIs homepage has a direct link to a petition form for those who would like to support Arizona-modeled immigration reform, and describes illegal immigration as an invasion. 105 Supra note 82. 106 Id. See also FAIRs homepage at www.fairus.org. 107 Even after becoming the first Arizona legislator to be ousted from office in a recall election, Russell Pearce is still aggressively trying to spread the word about SB 1070 and gain further support, and most recently, has endorsed Mitt Romneys campaign, stating: attrition by enforcement. Its identical to mineenforce the laws. We have good laws, just enforce them. See The Organization: Fairs Nativist History, Southern Poverty Center (Jan. 2011).
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need for Ango-Saxon dominance.108 proven to be rather fruitful.

Publicizing and promoting restrictionist theories have

State anti-immigration laws and proposals vis--vis attrition

through enforcement is the direct product of restrictionist groups, including FAIR and the Center for Immigration Studies (CIS).109 While these groups would certainly favor even more severe restrictions on immigration, in light of the current political reality, a more realistic approach was to market the attrition through enforcement strategy as a more gentle alternative to unviable strategy of mass deportation. 110

VII.

Conclusion

The rise of state and local level immigration regulation is one of the most earth-shattering trends in modern immigration law. Despite states ill-informed rhetoric, immigration, whether legal or illegal, they may well be a net general benefit to state constituents. Across the political

spectrum, many policymakers share a belief that a high level of illegal immigration is strongly correlated to troubled economy, high unemployment rates, or a higher rate of crime. Nevertheless, empirical evidence has shown that immigration does not take away jobs or even decrease wages for native workers, and that the only group actually adversely affected by immigration was high school dropouts, which leads to a reduction in wages.111 These attempts to maintain public support

Id. For instance, FAIR has produced television programming, titled Borderline, featuring discussions led by white nationalists, along with newsletters to inform readers of intellectual inferiority of blacks and Latinos. 109 Q & A Guide to State Immigration Laws: What You Need to Know If Your State is Considering Anti-Immigrant Legislation Immigration Policy Center Report (February 2012). 110 See Waslin, supra note 11. 111 See Scott A. Beaulier, Darrick C. Luke, and Daniel J. Smith, Tough on Immigration is Tough on Economic Growth, The Freeman Ideas on Liberty, Vol. 62 No. 1 (2012).
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Although proponents of SB 1070 type laws claim that massive number of self-deportations of unauthorized aliens was directly owing to these state initiatives,112 it still begs the question of what good the shortage of thousands of agricultural workers, for instance, serve when it causes the very issues that state residents were hoping would ensue upon implementation, e.g., safer neighborhoods, 113 and reduced economic burdens on taxpayers. Another key aspect of immigration policy debates and the states decision to consider and pass restrictive anti-immigrant laws, is the countrys economic condition. U.S. immigration history reveals that the cyclic nature of anti-immigrant sentiments and xenophobic attitudes grow stronger during times of distressed economy, giving more strength to anti-immigrant and racist coalitions proffered theories of the intellectual inferiority of immigrants and the need for preserving the Anglo-Saxon dominance. With respect to the political factor influencing changes in immigration law, reflected in the highly contested SB 1070 and copycat bills, it goes without saying that in view of the upcoming elections, the media has captured national attention to the ongoing fiscal politics and political debates surrounding the illegal immigration issue. The recent legal debates primarily focus not so much on whether state and local governments have authority; rather, assuming some state authority over immigration enforcement exists, the question is whether they should enact their own immigration regulations. The recent societal anxiety and anti-immigrant sentiment may well be caused by the collective effect and interplay between immigration politics, molded by the prevalence anti-immigrant sentiment shared by
Kris Kobach, Throwing the States Off the Field, National Review, The Corner (Jun. 19, 2011), available at http://www.nationalreview.com/corner/270003/throwing-states-field-kris-kobach#. 113 In fact, there is no empirical data that shows direct significant correlation between illegal immigration and crime rates. Instead, hate crimes by Americans against Latinos in Arizona, for example, swiftly escalated when immigration debate intensified shortly after Arizonas S.B. 1070 was signed into law a
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both the majority political party and the general public.

The dynamic of immigration issues

raised in political debates might be fueled by uncertainty about how or what impact these laws will have. It is crucial for state governments to consider and understand the bearing of taking immigration legislation and enforcement into their own hands. Much uncertainty remains as to how or when an operative and practical immigration reform will finally be created, if ever. What is clear is that unauthorized entry into the U.S. will never end and the federal government has not been successful in battling unauthorized immigration even after having spent billions of dollars in enforcement measures. Notwithstanding that fact,

undercutting the concept of uniformity in the countrys immigration system, by creating patchwork immigration law across fifty states, local governments are not only encouraging racial discrimination, deteriorating their own financial condition, and reinforcing misconceptions about immigrants as a threat to Americans, but also hampers any work in progress to creating comprehensive immigration reform. The real solution, or perhaps the only solution, is to urge Congress and the executive branch to earnestly address the currently broken immigration system by offering proposals to help build a more comprehensive and balanced immigration system.

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