On April 23, 2010, Arizona Gov. Jan Brewer signed into law Arizona Senate Bill 1070 (SB 1070) the “Support Our Law Enforcement and Safe Neighborhoods Act.” SB 1070’s stated intent is “… to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” This will be accomplished by making it a misdemeanor for a person to lack proper immigration paperwork. It also requires police officers, if they form a “reasonable suspicion” that someone is an illegal immigrant, to determine the person’s immigration status. Individuals unable to produce documents showing they are allowed to be in the United States could be arrested, jailed for up to six months and fined $2,500.
Organizations such as the National Coalition of Latino Clergy and Christian Leaders, the Mexican American Legal Defense and Educational Fund, and the National Immigration Law Center are challenging SB 1070 on constitutional grounds as well as fears that it will lead to the racial profiling of Hispanics. In Mexico City, Mayor Marcelo Ebrard announced he would try to join lawsuits seeking to overturn the law, with a statement from his office calling the measure “a planned Apartheid against Mexicans.” It is not only Hispanics but the historic victims of racial profiling, African-Americans, who should be concerned.
Historically, immigration has fallen under the jurisdiction of the national government, not the states. Supreme Court precedent supports the position that the role of controlling immigration and enforcing immigration law is reserved for the national government. State laws seeking to regulate immigration status are always subject to preemption challenges given the federal government’s plenary power (full, absolute authority as broad as is required in a given case) over immigration and nationality.
Unfortunately, as the Supreme Court has become more conservative, it has demonstrated an interest in ignoring precedent in order to further the ideological objectives of its majority. This new direction has become a source of concern to those groups that have historically looked to the court and government to protect their civil rights. The court’s five conservative members recently overruled two important precedents about the First Amendment rights of corporations by allowing corporations and unions to spend freely to influence elections. The court also recently intervened in a gay-marriage trial in San Francisco after conservative lawyers complained of a judge’s plan to permit a limited public viewing of the courtroom testimony.
According to President Obama, conservative judges are cloaking their activism in legal theories like “original intent.” What should be of utmost concern to members of the African-American community is the question of how conservative courts will address the age-old questions of “states’ rights.” Will the State of Arizona be allowed to enact laws usurping national government authority? If so, will other states be allowed to enact laws that target ethnic and/or religious groups that are perceived to be disproportionately engaged in undesirable activities? A court ruling in favor of SB 1070 could bring the issue of “states’ rights” back into play at the expense of African-Americans and other groups.
If SB 1070 is found to be constitutional, what will happen in Chicago as that city struggles to get a handle on the recent explosion of murder and mayhem and the alarming levels of violence among its schoolchildren? Will the State of Illinois be allowed to “stop and frisk” and detain individuals simply because law enforcement believes a particular individual fits a certain profile? Will New York City be allowed to restrict citizens’ access to public transportation and public spaces based on appearance and profile as it struggles with a spate of high school stabbings, deadly subway brawls and “wilding” in Times Square?
As President Obama considers his next Supreme Court nominee, it is issues such as immigration law in Arizona and how the court will decide issues such as “states’ rights” that should factor into who he nominates. Americans can ill afford a president who will yield to the threats of the conservative agenda such as The National Review’s assertion that “the question for conservatives will be not whether but how to oppose Obama’s nominee,” and Sen. Lamar Alexander’s confirmation that he is refusing to rule out a filibuster. As a former constitutional law professor, Obama, the “professor-in-chief,” must take the lead in educating Americans on judicial temperament and the importance of precedent, and must clearly define judicial activism. Conservatives do not have a monopoly on American values, and broader interpretations of constitutional constructs do not necessarily equate to “judicial activism.”
Americans cannot allow conservative fear-mongering, fears of terrorism, loss of jobs and xenophobia to direct them towards simplistic misguided remedies to very complex social problems. Benjamin Franklin once said, “Those willing to give up essential liberty for temporary security deserve neither and will lose both.”
African-Americans need to stand up and take notice. A national backlash against illegal immigrants could have a disastrous ripple effect on everyone’s civil rights and liberties.
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