Yale Law Information Society Project Fellow and native Tucsonan Sam Kleiner looks at options to federal immigration reform:
As immigration reform is stalled in Congress, progressives should look to the states and cities to take action to help incorporate immigrants into our the fabric of American society. Ultimately, we need an integrated system with federal, state and local action on immigration. But we can’t wait for Congress to take the lead.
In October, California Governor Jerry Brown signed the TRUST Act, which barred California police officers from turning over undocumented aliens arrested for non-violent crimes to federal authorities. Brown said that he “not waiting” for Washington to act, an argument that was strikingly similar to Governor Brewer’s claim in enacting SB1070 that Washington’s “decades of inaction” necessitated local policy. Our political leaders of all stripes have characterized local immigration policy as a necessity in light of federal inaction. The Supreme Court ruled in 1979 in DeCanas v. Bica that the “power to regulate immigration is unquestionably exclusively a federal power.” By and large, states have only sought to justify their action in immigration as a necessity stemming from the failure of the federal government.
While SB1070 certainly left a sour aftertaste for thinking about the role of immigration localism, its Constitutional problems are not inherent to immigration localism. SB1070 was enacted in 2010 during a period of hyperbolic media alarmism about the growth of illegal immigration. These types of anti-immigrant measures are the aberration; the high legal bills and the blow to business triggered a backlash that pushed its architect, State Senator Russell Pearce, out of office. With that chapter behind the state, it is time to think about a more constructive path forward for immigration localism.
At its core, immigration is a multifaceted phenomenon that is different in different parts of the country. Immigration has largely been driven by economic factors, with immigrants choosing to settle in parts of the country where work was readily available and there is a community that they can belong to. In Arizona, for instance, undocumented immigrants make up for 6% of the population whereas in another border state, Montana, undocumented immigrants were less than .1% of the population. Of course, the reason for the disparity is that illegal immigration flows from Mexico and Central America and has congregated in the Southwest with more recent growth in the Southeast. Immigration and the ensuing public policy issues in healthcare, education and a myriad of other issues are as varied as the different communities in our nation. The federal government is not in a great position to be able to address the local nuances of immigration in an efficient manner.
There is a value to local experimentalism in designing immigration policy. Justice Louis Brandeis noted, a "state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” There is a value to debating and hashing out a compromise to immigration at a local level where the citizens can help to determine what solutions fit with their local needs. Though they may err in the ideal solution, the democratic process is self-correcting and the courts serve a role in policing the limits of anti-immigrant restrictions.
In fact, the growth of political activism amongst the immigrant community is closely tied to placing power over immigration in local hands. While immigrants cannot have a significant voice at the federal level, they are politically empowered at the local level. The growth of political organizations in Arizona such as ‘Team Awesome’ that seek to mobilize the political power of the Hispanic population has been part of a desire to have more of a voice in the debate over the local immigration debate. Locality matters in drumming up the voice of the immigrant community. "It is easier to get someone to vote for [local candidates] than it is to vote for something they can't really see," said Stanford Prescott, a Team Awesome organizer in Latino sections of Phoenix. Rather than looking to the federal government as a source to preempt state action, advocates for immigrants should be embracing local immigration policy for driving immigrant political participation.
The immigration challenges that Arizona faces are different than the ones that a non-border state faces. While Governors Brewer and Brown have cast aspersions on immigration localism as a response to the failure in Congress, we need to embrace a local approach to immigration as an important objective. We want a customized immigration policy, so long as it respects the rights of the immigrants, that fits the needs of the state and of its cities.
Long thought to be the exclusive providence of the federal government, immigration is actually an issue where localism is greatly needed. Arizonans who care about immigration shouldn’t wait for an inert Congress to act; we should look to our progressive mayors and, someday, a progressive Governor for action that can move the ball forward on immigration.