i’ve got a tough-on just thinking about it

Oh, man. Remember the Eighties and Nineties? When there was an arms race among politicians to see who could be “toughest on crime”? Remember how well that played to the galleries — until we ended up being the incarceratingest country in the world and no less than Grover Norquist and Newt fucking Gingrich have now joined the call for prison reform?

Well, now that crime is down (though arguably not due entirely to “toughness”), what’s left to be tough about? You could be tough on terrorists, of course, but Osama Bin Laden’s death has provided a kind of psychological cap to that narrative, too. Not to worry, though. Alabama Governor Robert Bentley is riding the new wave:

Alabama Republican Gov. Robert Bentley signed on June 9 the nation’s harshest anti-immigration law, surpassing Arizona….

Bentley said, “I campaigned for the toughest immigration laws and I’m proud of the legislature for working tirelessly to create the strongest immigration bill in the country.”

According to the Birmingham News, “A person without valid federal alien registration or other proof of legal presence in the United States would, just for being in Alabama, be guilty of a crime.” What constitutes “proof of legal presence” according to the bill? I happen to have a copy right here:

No officer of this state or any political subdivision of this state shall attempt to independently make a final determination of an alien’s immigration status. An alien possessing self-identification in any of the following forms is entitled to the presumption that he or she is an alien lawfully present in the United States:

  • a. A valid, unexpired Alabama driver’s license.
  • b. A valid, unexpired Alabama nondriver identification card.
  • c. A valid tribal enrollment card or other form of tribal identification bearing a photograph or other biometric identifier.
  • d. Any valid United States federal or state government issued identification document bearing a photograph or other biometric identifier, if issued by an entity that requires proof of lawful presence in the United States before issuance.
  • e. A foreign passport with an unexpired United States Visa and a corresponding stamp or notation by the United States Department of Homeland Security indicating the bearer’s admission to the United States.
  • f. A foreign passport issued by a visa waiver country with the corresponding entry stamp and unexpired duration of stay annotation or an I-94W form by the United States Department of Homeland Security indicating the bearer’s admission to the United States.

You can, of course, see half the enforcement problem just in the language of the first paragraph. Who, exactly, is an “alien”? The bill gives a technical definition of aliens, but doesn’t really explain how an officer is to know that someone is an alien, except by checking his ID. But you wouldn’t ask for someone’s ID unless you had a “reasonable suspicion” that he was an alien, according to paragraph (a) of Section 12.

Paragraph (c) explicitly forbids police from considering “race, color, or national origin in implementing the requirements of this section except to the extent permitted by the United States Constitution or the Constitution of Alabama of 1901.” Of course, that’s ridiculous. If you exclude race, color, and national origin, what rational basis do you have for assuming alienage? Funny accent? Fondness for piñatas? Either the bill will be enforced based on race and national origin, or it will hardly be enforced at all. If the latter, then what is the point of the tough-on-illegals rhetoric, since the bill will make very little dent in illegal immigration? But if the former, how on earth are we to believe that such enforcement will not sweep up and massively inconvenience many perfectly legitimate Latino citizens and permanent residents?

And as David Neiwert of Crooks And Liars pointed out when Arizona passed a similar bill last year,

[T]his also raises a huge question: What if you’re from another state? What if you’re only carrying an out-of-state driver’s license?

Many states refuse to require proof of citizenship when issuing driver’s licenses: they wisely understand that it’s more important to have people driving their roads with licenses and documentation than not, and requiring citizenship papers is a good way to discourage it.

So if someone — say, a fourth-generation Latino citizen with an accent — traveling through Arizona with a California or a Washington driver’s license has the misfortune to be pulled over in a traffic stop — or maybe just one of Sheriff Joe Arpaio’s roadblocks — and has the similar misfortune to arouse an officer’s “reasonable suspicion” (say, he has a heavy accent or looks nervous), he could be hauled in and arrested under SB 1070, until someone back home can fax the birth certificate.

Neiwert quoted this advisory from ConsumerTraveler.com suggesting that “[I]f you’re a swarthy skinned traveler in Arizona, I’d recommend you carry proof of U.S. citizenship or legal immigration status to avoid possible detention.”


(ConsumerTraveler also linked to the interesting case of Martin Escobar, a Tucson cop who sued the state in federal court, claiming there was no possible way to enforce the law that was not race-based. He was supported in his suit by the city government of Tucson, but the federal judge ruled that Escobar didn’t have standing to sue. Escobar is appealing to the 9th Circuit. Here is a list of pending cases against the Arizona law as of December.)


Finally, this interesting interview with Sam Brooke of the Southern Poverty Law Center clarifies some of the other problems with this kind of vast, indiscriminate immigration enforcement. First, the law makes it a crime to rent an apartment to someone whom the landlord knows or should know is an illegal immigrant. Of course, most landlords are hardly qualified to make a determination of citizenship or residence status. As Brooke notes, “We are very fearful that landlords will start to discriminate, because if there’s any question about a person, the landlord will want to err on the side of not going to jail.”

Second,

The twist is a provision in the Alabama law that requires schools to determine and verify immigration status of any student who is enrolling and any parent of students who are enrolling. The bill’s backers are saying that this is constitutional because they are not turning people away from schools. The schools are not supposed to turn people away, but they are required to collect this data and to report it to the Legislature. This is clearly in violation of existing Supreme Court precedent, because it will in fact have a chilling effect on immigrant children enrolling in school.

And third, of course, this places a terrible burden on local police, who rely on the goodwill of the community to carry out both their protective and their investigative functions. Brooke:

Many police officers are also nervous. They recognize that you have to be engaged with the population and let them know you’re there to help. That way, when crime happens, people know they can trust you and go to you to report the crime. That keeps all of us safer. If people are afraid to call police, crime can run rampant. This is already a problem in certain immigrant communities.


All of this is not to say that illegal immigration is not a serious issue, or that the states shouldn’t play some role in trying to curb the problem. Certainly the states have a compelling interest in stemming illegal immigration, since it’s primarily states who feel the burden of, for example, educating and providing medical insurance for the children of illegals. But these kinds of solutions, which place a terrible burden on the police, school administrators, and landlords while opening the door for rampant discrimination, are the wrong way to go. A better solution is to crack down on the root of the problem — employers looking for less-than-minimum-wage labor — while simultaneously providing an easier and clearer path to citizenship for anyone who wants it.

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