Immigration law, the standard refrain goes, is firmly in the hands of the federal government. In the language of judicial doctrine, the federal government has plenary power over immigration. As the Supreme Court put it in the late nineteenth century, “It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. In the United States this power is vested in the national government….” Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892).
In recent years, the federal government has used this broad authority to expand its immigration law enforcement efforts to a scale never before seen. There are more Border Patrol agents on the ground, more detention beds filled with migrants, higher steel and concrete walls, and more high-tech gadgetry available to help federal officials identify potentially removable individuals.
Focusing on the federal government’s role in immigration policing, however, obscures the role that states play in developing immigration law and policy. A new collection of essays edited by Carissa Byrne Hessick of the University of Utah and Gabriel J. Chin of the University of California – Davis, Strange Neighbors: The Role of States in Immigration Policy (NYU Press 2014), shines a much needed light on state immigration activities and reveals that the federal government’s impressive power over migrants’ lives is only one part of the story. States have long been involved in trying to make life difficult for migrants—so difficult that they will leave—by adopting a rhetoric of migrant criminality and using their inherent power to criminalize undesirable conduct. Their efforts, this collection illustrates, have been creative, dubiously legal at best, and, despite proclamations to the contrary, spurred by hatred and fear.
To the modern reader, Arizona’s “show me your papers” law (often described as “Senate Bill 1070” and officially titled the “Support Our Law Enforcement and Safe Neighborhoods Act”) is well known for its attempts to codify into law virulence toward migrants. In their chapter, Huyen Pham of Texas A&M and Pham Hoang Van of Baylor University quantify this attitude toward migrants through an innovative “Immigrants’ Climate Index” which scores each state or local law related to immigration. Not surprisingly, Arizona leads the states as adopting the most negative stance toward migrants (page 31).
For all the attention Arizona has rightfully received, Tom I. Romero, II, my colleague at the University of Denver Sturm College of Law, reminds us that it is not walking a wholly new path. Arizona is instead following in the footsteps of previous state initiatives. A legal historian, Romero’s chapter takes us to the middle of the 1930s when the United States was in the midst of the Great Depression. In a move reminiscent of Texas’s deployment this summer of National Guard troops to its border in response to an influx of unauthorized migrants, Colorado’s governor, “Big” Ed Johnson assigned to the state National Guard the task of excluding and deporting Mexicans (pages 72-75). Of course, Colorado doesn’t border México. Instead, the governor sent troops to the state’s borders with New Mexico and Oklahoma (after placing the regions under martial law) to check the citizenship and financial stability of anyone seeking to enter Colorado (page 81). Though immensely popular at first, Johnson’s crusade eventually lost support as it became clear that most of the people apprehended had every right to be in the United States and some—like “Roscoe Houghton, a one-armed former miner for whom ‘sympathetic newspapermen took up a collection’ to help him get to his final destination”—were even white (page 85).
Why do states turn to mean-spirited attacks on migrants? The various essays suggest that the answer lies in crimmigration law. Kris W. Kobach, a former law professor and current Kansas Secretary of State who made a name for himself freelancing on behalf of restrictionist laws, claims local officials are concerned about migrant-produced crime waves and disproportionate numbers of unauthorized individuals in prisons (page 101-102).
Apparently, it’s irrelevant that this is largely not true. As I’ve written numerous times on crImmigration.com (for example, here, here, here, here, and here) reams of evidence stretching back decades suggest that migrants are less prone to criminal activity than native-born counterparts who share key similarities regarding age, gender, and wealth. Even without those qualifications, states that have enacted harsh immigration legislation, including by criminalizing aspects of migrants’ lives, were experiencing crime drops not crime increases. The year before Arizona enacted S.B. 1070, for example, it had a lower violent crime rate than the national average (which itself had dropped precipitously since the late 1980s and early 1990s) and a decreasing property crime rate (pages 233-235).
A more convincing explanation for state restrictions on migrants is the United States’ twisted love affair with racism and policing. “[T]he spurt of state legislation,” writes the University of Washington’s Mary Fan, “is a proxy way to vent resurgent racialized anxieties and engage in friend-enemy politics founded on conflict with the ‘Other’—the foreign enemy within—in a time of economic and political turmoil” (page 229). Viewed in this light, recent state involvement in crimmigration law is no surprise. The United States is only now emerging from the worst economic crisis in generations. Meanwhile, we remain deeply committed to strong-armed policing. The militarization of law enforcement showed its ugly face on international media in Ferguson, Missouri recently, but it’s a story that has been playing out in African American communities for years in the form of the failed war on drugs.
The panoply of drug war policies that have helped spread SWAT teams and military-grade weapons to cops on the street while converting imprisonment to a veritable rite of passage has long influenced immigration policing. “During a key period of about fifteen years from the early 1980s to the mid-1990s,” I explained in Immigration Detention As Punishment (UCLA Law Review 2014), “the U.S. Congress drastically expanded the executive branch’s power—and at times—obligation—to confine people pending immigration proceedings largely by tapping the nation’s growing concern about drug activity. Congress in effect envisioned immigration detention as a central tool in the nation’s burgeoning war on drugs” (page 1349).
Three decades later, overblown policing has become the norm throughout the United States. Whether it’s peaceful protests in suburban Ferguson or migrants trying to survive, officials at every level of government seem propelled by fear of dark-skinned “outsiders” toward a singular solution: more law enforcement officers, more advanced technology, and more money. The end result is to spread the militarization that African American communities have dealt with for decades into migrant communities.
Migrants can find some solace in judicial pushback to the most egregious excesses. The Supreme Court, for example, found several provisions of Arizona’s S.B. 1070 preempted by federal law. Other state “criminal restrictions that are so broadly applicable and onerous that they are tantamount to deportation” are likewise constitutionally suspect, as Chin and the University of Arizona’s Marc L. Miller argue in their jointly authored chapter (page 176). Constitutional arguments are helpful, but they are narrow and largely divorced from the kind of racialized fear that has turned “suspected foreigners into an untouchable caste” (page 235).
Perhaps there is hope in rhetorical frames. Just as restrictionists ingeniously (if inaccurately) represent migrants as criminals, migrants and their advocates can adopt frames that speak to common values. Colorado’s use of the National Guard to target migrants, Romero explains, ultimately failed when white Coloradans began to see themselves in the troops’ grip (page 85). Borrowing from the pioneering critical race theorist Derrick Bell and his study of civil rights activism, Fan suggests focusing on shared interests in antidiscrimination norms (page 247-248). “[C]hoosing frames that make interest convergence salient is a way to better secure necessary majoritarian support for decisions vindicating equality values,” she argues (page 248).
I’m equally intrigued by and skeptical of this approach. I want to believe that dialogue can change hearts and minds; that conversation and personal relationships can lead to recognition of common interests. At the same time, I know that half a century after the interests that converged during the middle twentieth century give Bell some hope, unarmed black men are being killed by police officers and peaceful protestors are being met by armored personnel carriers. Instead of no longer being the faces at the bottom of the well, as Bell described African Americans in one of his best known books, I fear that they are being joined by migrants and every dark-skinned person suspected of being from somewhere else, wherever that is.
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