Morally Offensive Enforcement Schemes

November 1, 2010
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Robert Rubin

Jews support progressive immigration policies, but not just because we are admonished in Leviticus and Exodus to respect the stranger. Yes, as Rabbi Bonnie Koppell argued recently on this page, views on immigration can be visceral and “public policy must be based on more than what our hearts tell us.” But sound legal, logical, and moral reasons ineluctably lead one to oppose SB1070, the wrongheaded Arizona immigration law recently struck down by a federal court. SB1070 would place significant responsibilities for enforcing federal immigration policies on local and state police.

Koppell fails to acknowledge SB1070’s serious constitutional problems. Quite simply, the Supremacy Clause of the U.S. Constitution vests exclusive authority for regulating immigration in the federal government. The Founding Fathers recognized that we needed uniform policies to determine who could enter and remain, and that chaos would reign if we had thirteen (or 50) such policies.

Furthermore, SB1070 could lead to racial profiling. Untrained in immigration law, local and state officials would be forced to make judgments, subject to potential liability, as to whether reasonable suspicion exists that any person stopped for even the most minor crime, such as jaywalking, is unlawfully present in the United States. And, while SB1070 does bar law enforcement officers’ reliance on factors such as “race, color, or national origin,” it is difficult to imagine how even the most conscientious, yet untrained, officer could avoid reliance on those factors when earnestly trying to discharge his or her duty to assess whether “reasonable suspicion” exists.

Finally, as the Arizona court found, SB1070 mandates that “all arrestees will be required
to prove their immigration status to the satisfaction of state authorities, thus increasing the intrusion of police presence into the lives of legally present aliens (and even U.S. citizens), who will necessarily be swept up.” Even if local authorities’ arrest of persons unlawfully present was otherwise authorized, this sacrifice of civil liberties for persons lawfully present cannot be justified.

Besides, strong policy reasons exist for opposing SB1070. By placing responsibility for enforcing federal immigration laws in the hands of local law enforcement officials, SB1070 threatens to undermine widely supported policies such as community policing. These efforts are dependent upon the trust and cooperation of the community. But when local police departments begin to enforce federal immigration laws, they will be viewed as agents of the federal government and any sense of trust and cooperation will dissipate. As a result, immigrant victims of crime and witnesses to crime will be deterred from coming forward, fearful that contact with the police will lead to deportation. That is why so many local law enforcement officials oppose SB1070-type policies.

The tenor of the debate at the federal level is not much more open-minded. National figures, such as Republican Sen. Lindsey Graham of South Carolina, threaten to strip citizenship from U.S.-born children of undocumented parents. Supporters of this approach argue that pregnant women sneak across the border so that their babies — born on American soil — can then wave a wand and turn their illegal alien parents into U.S. citizens.

The truth is that the baby can do nothing for the parents until age 21. Another fiction: that birthright citizenship is a primary incentive for illegal immigration. Anyone truly interested in identifying primary incentives would plot a graph of U.S. economic indicators and then overlay it with data on the number of illegal border crossings. One would find: It’s the economy, stupid!

The restrictionists justify the morality of such positions by arguing that “illegals,” after all, are hopping the fence and crashing our party. But the true metaphor is that yes, we are having a party and there are people outside our fence. They need jobs and we need help — serving food to our guests, cleaning up afterward, and caring for our children. So we invite them in and employ them. But when economic times get tough, as they are now, we blame immigrants for job losses.

Until we fully acknowledge and resolve this hypocrisy, our nation’s commitment to being what the Jewish poet Emma Lazarus described as a refuge for the “huddled masses yearning to breathe free” will remain unfulfilled, and our society’s quest to move from darkness to light incomplete.

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