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July 14, 2010

Host: Ted Simons

Immigration Law Lawsuits

  |   Video
  • University of Arizona law professor Gabriel Jack Chin discusses some of the arguments in the various lawsuits that have been filed challenging Senate Bill 1070.
  • Gabriel Jack Chin - University of Arizona law professor
Category: Immigration   |   Keywords: immigration, sb 1070, university of arizona,

View Transcript
Ted Simons: Much of the governor's support has been tied to Arizona's new immigration law. It takes effect July 29th unless a judge decides to put it on hold. Several lawsuits have been filed challenging senate bill 1070. A federal judge has hearings scheduled for those cases tomorrow and July 22nd. Here to walk us through some of the legal argument assist University of Arizona law professor Jack Chin. Good to have you here. Thanks for joining us.

Jack Chin: Thank you.

Ted Simons: Let's start with the federal suit and get to the others later. The federal suit, your general thoughts on the tenor of this particular challenge.

Jack Chin: Basically the federal suit says immigration is a federal responsibility. The United States has the authority to pass the laws, to enforce the laws, to make the decisions about how the laws are going to be applied, and SB 1070 says the department of justice takes over that federal authority in a way that the constitution prohibits.

Ted Simons: So we're talking preemption by way of supremacy clause.

Jack Chin: Part of it is that the SB 1070 is preempted through the supremacy clause. Part is that SB 1070 conflicts with particular provisions of the immigration and nationality act. But there's a larger argument. There's -- which is that states simply don't have the power to regulate immigration. Consistent with the federal scheme, inconsistent with the federal scheme, they just can't pass laws that directly regulate immigration as they claim SB 1070 does.

Ted Simons: And supporters of SB 1070 will say that this simply mirrors federal law. Does it?

Jack Chin: No. It doesn't mirror federal law. And it doesn't mirror federal law in two senses. First, the SB 1070, and here I'm talking about the four crimes that are either created in SB 1070 or amended in SB 1070. The crimes are not the same as the federal crimes. One of them, for example, in SB 1070, criminalizes looking for work or working if you're undocumented. That similar supply not a crime in federal law. So Arizona says if you're undocumented and you work, you should go to jail. The federal code doesn't make that a crime at all. So that's not mirroring federal law, mirroring federal policy. It's a different policy. And the other statutes are more or less different. They cover different things. The Arizona versions of federal statutes cover different things. They have different exceptions. It doesn't mirror federal law in that sense. But there's a larger sense in which it doesn't mirror the law, and the core of the argument and the one who support SB 1070 are really going to have to grapple with is that SB 1070 basically sets up one response to finding an undocumented person in Arizona. Criminal prosecution. That's the thing that happens under SB 1070. The immigration and nationality act has a variety of responses. It allows the federal immigration authorities to do any one of a number of things. Criminal prosecution is a possibility, in some cases. But also civil deportation. And then the immigration and nationality act has a number of relief provisions. It has a number of ways, even for someone undocumented, to be allowed to stay in the United States. If they qualify for asylum, for example, if they are a witness in a criminal case. There are various ways for somebody who is today undocumented to be arrested by federal authorities and put in proceedings, but make an argument that winds up with them yeting a temporary or permanent Visa. So that's the core of the department of justice argument that what the Arizona law does is take people who under federal law are allowed to remain in the United States ultimately, and puts them in jail. That's the problem.

Ted Simons: And they are allowed to remain in some cases by way of federal law because of a variety of things. Humanitarian interests, foreign policy concerns, a number of things have to be balanced, correct?

Jack Chin: Exactly. Exactly. The immigration nationality act is not singularly focus order keeping people out. It also lets people in. But even with undocumented people, it doesn't say if you're undocumented, then our goal is to get rid of you. It allows people for humanitarian reasons such as the asylum program, to be allowed to stay if in their home country they will be subject to persecution or torture. It also allows the United States to let people stay if it's in the interest of the United States. For example, if someone has been trafficked, they're undocumented, but they've been brought to the United States, let's say to work in some sort of organized crime operation, let's say as a prostitute, well, there are Visas available to such people to allow them to stay to testify. And as a witness in a criminal prosecution against the people who trafficked them. And obviously there's a great public interest in having somebody like that be able to stay and offer testimony to enforce the law in other areas.

Ted Simons: And yet supporters of SB 1070 say the last thing they want is for these people to stay. The law was designed to dissuade these folks from coming here and if they're here, to dissuade them from staying.

Jack Chin: Well, and that's the problem. That's the argument of the department of justice, the argument of the United States, that the immigration and nationALiTY act is more complicated. Sometimes it allows people to stay, temporarily or permanently. Sometimes just because you're undocumented that doesn't mean you forfeit every possibility of legally remaining in the United States. And sometimes those are associate the with powerful federal interests, that is, fighting crime, or foreign relations, for example. It may be I suspect that is the case that we will get -- the United States will get more cooperation out of, say, Mexico, if they handle the undocumented problem in a way that Mexico perceives as humane. If Mexico thinks that the United States is unreasonably harsh, they might not cooperate. And it might control the border better if Mexico cooperate. It will be more effective, the border will be more secure if we can persuade Mexico to cooperate and we can't simply force them to cooperate if they don't want to.

Ted Simons: Interesting. There are other legal challenges, six other, I believe, and these range from an individual, legal immigrants in Washington, DC to a couple of police officers, one in Phoenix, the other in Tuscon. I think the latest suit had to do with the training video that law enforcement is involved with. Talk with us about these suits and how they differ from the federal challenge.

Jack Chin: The federal challenge goes to the core of Arizona's authority to pass a law like this. The other challenge is, either borrow the same ideas, but with less credibility. Because it's one thing for an organization or an individual to say that Arizona is wrongly usurping federal authority, that's another thing for the federal government to say that. If the federal government says, hey, you are interfering with our foreign policy, you are interfering with our execution of the laws, which the constitution gives to us, that's much more credible than an organization or individual saying it. The individual lawsuits and the lawsuits by other organizations are interesting because they raise other issues. But a lot of them are issues that speculate about what's going to happen in the future. So an individual officer filed the lawsuit saying he might be forced to take a risk of breaking the law, by racially profiling, or being sued which SB 1070 allows lawsuits against agencies that don't sufficiently enforce the law. But he might find himself in a dilemma or he might not. Legal noncitizens in the United States might be unfairly targeted or they might not. Those suits depend on how the law is actually applied. And what's interesting and I think more fundamental about the federal suit is -- and the ACLU and MALDEF suit as well, which raises the same arguments, and this is just -- regardless of how it's applied even fits applied scrupulously, which presumably it will be, it's still unconstitutional.

Ted Simons: You were not necessarily surprised that racial profiling was not more prominent if at all in the federal challenge. Why is that?

Jack Chin: Because a lot of people don't know this, even people -- even lawyers, but the United States Supreme Court and the Arizona Supreme Court have both held that racial profiling is legal in the immigration context. Apparent Mexican ancestry is the phrase, can be used as evidence that a person is not a U.S. citizen and therefore it can be the basis for an investigation. It can't be the sole factor. There have to be Mexican appearance by itself doesn't constitute regional suspicion or probable cause.

Ted Simons: Is that all law enforcement officers or just border patrol?

Jack Chin: It has been used by non-- this case that I'm talking about, I read it as establishing the framework for determining reasonable suspicion or probable cause that a person is not in the country legally, I read it as annuity not creating special powers for the border patrol, but establishing the kind of evidence that support reasonable suspicion or probable cause. This case certainly has been used by nonborder patrol law enforcement, nonfederal law enforcement, as setting the structure for what counts as reasonable suspicion.

Ted Simons: Quickly, last question, with that in mind, would you be surprised if the attorney general, Eric holder, went ahead and filed a second suit with racial profiling as the feature?

Jack Chin: There would have to be strong evidence that local law enforcement was stopping people solely because of Mexican appearance F they're stopping people because of apparent Mexican appearance and other factors that suggest that the person is undocumented, at the moment I think that's legal.

Ted Simons: All right. Very good. Thank you so much for joining us. We appreciate it.

Jack Chin: Thank you.

The Political Impact of SB 1070

  |   Video
  • Director of ASU's School of Government, Politics and Global Studies Dr. Patrick Kenney and ASU Political Science Professor Emeritus Dr. Bruce Merrill talk about how the battle over Arizona’s immigration law could impact the upcoming elections and the political landscape in both Arizona and the nation’s capitol.
  • Dr. Patrick Kenney - Director, School of Government, Politics and Global Studies, ASU
  • Dr. Bruce Merrill - Political Science Professor Emeritus, ASU
Category: Immigration   |   Keywords: sb 1070, ASU,

View Transcript
Ted Simons: The fight for and against senate bill 1070 is all but certain to have an impact at the ballot box this familiar. Here to talk about the potential winners and losers are ASU professor eemeritus of political science, Dr. Bruce Merrill and Professor Patrick Kenney, chairman of ASU's political science department. Good to have you both here. Let's start with -- let's go general and fine tune it as we go along. The political impact overall of SB 1070, what are you seeing?

Dr. Bruce Merrill: Well, certainly in the campaign, let me put it this way. Had Jan Brewer not signed 1070, she would have had no chance to become the next governor of Arizona whatsoever. She wouldn't have got out of the Republican primary. The right wing of the party was already mad at her because of 100. Had she not supported 1070, she would have had a very difficult time I think. I think it would have been a completely different outcome.

Ted Simons: Does this have -- is this one issue have the potential now, all the way through November, to literally dominate the GOP side?

Dr. Bruce Merrill L: Well, there's so many things that would matter. If this is held unconstitutional in the courts, that's going to have a lot of implications because it could shift the political agenda more to the economy and jobs and those are big issues in Arizona too. So it depends to some degree what happens in the courts now I think. But I don't think there's much question that it will dominate the agenda at this point.

Ted Simons: Patrick, as far as -- let's stay with the primary season and we'll start with Republicans. Easily, number one, two, three, four, five, as far as issues are concerned?

Patrick Kenney: It's clearly one of the top two for sure. But the economy remains to be the top issue for Republicans, and in particular, as it's related to state spending in Arizona. So the Republicans have been very interested in holding the line on state spending. Stimulus money runs out over the next year, gradually out of -- over the next year, and so Republicans are again if they held the legislature, are faced with that economic issue. Clearly immigration is one, two with the economy. Fit was not a recession, it's clear number one. But we still remain in a recession.

Ted Simons: Yet we saw Buz Mills, one of the gubernatorial candidates, basically say I'm dropping out because no one seems to care about job creation and the economy anymore, it's all about immigration.

Patrick Kenney: He was running a long ways behind in the polls and it was costing him a lot of money. So I think if he had been close he could have kept in the race and tried to push other issues. But if he's trailing so much, I think it's a strategy calculation.

Ted Simons: As far as the GOP primary, tops, 1070 tops?

Dr. Bruce Merrill: Well, I agree completely with pat. I still think that politics is always local and personal. It really in Arizona there's a lot of people hurting. And it gets down to jobs, ultimately. What's happening to me is the interaction of two things. Because so many independents that are more moderate have left both political parties, the discussion, the rhetoric between the parties has become very ideological -- and it's really not even close I think to the average voter out there. The second thing is the media itself. We have always handled -- we've always had illegal immigration. It's always about problem. But if the media focuses on it, then it builds it even to a much higher crescendo. And that's what's happened to a large degree.

Ted Simons: Is this the kind of thing that's taking Bruce's point, as far as the Republican party is concerned, will moderates feel themselves alienated? Will they be pushed -- be feeling pushed out because they may not agree with SB 1070 or at least not agree with it as vociferously as others.

Patrick Kenney: It probably has long-term and short-term impacts. Most polls show their support for some kind of legislation that looks like SB 1070 in the short-term. And certainly Republicans in Arizona would be supportive of that. Long-term, if one piece of data is what happened after prop 187 in California, where after that the expansion, the Democratic party coming from minority populations in California really helped the Democratic party probably. And so long-term the Republicans may be hurting themselves in the state, but I mean long-term over another decade or so.

Ted Simons: Do you think the California model could apply in Arizona?

Dr. Bruce Merrill: It completely agree with Patrick. It's -- I think the interesting thing to me is that this isn't about being in the country illegally or not. As a political scientist, I think one has to say you break the law or you don't. And we don't selectively in a nation of laws do that. To me, it's the real question is, we've got a problem. And it's how we deal with the problem in this 1070 the most effective way in terms -- the state, I that I lot of people don't understand how bad the state is being hurt economically in terms of public opinion, and as Pat says in the long-term, you have to go back to the Mecham years there. May be companies that don't move here. With a political instability that we have in this state, one thing new business needs is stability. And I think there are long-term potential consequences for this that we haven't really looked at.

Ted Simons: Compare that, what Bruce is saying, that particular outlook, and what we're seeing around the country which is state legislatures all over the place deciding they want to be the next Arizona. What's going on here?

Patrick Kenney:- I think one thing that's going on is immigration is not on the border. You have smaller communities throughout the country being affected by quick and fairly sizable immigration. And there's a long history in the United States of reaction time grace, especially fit happens quickly. And one kind of response is that -- is the state and local governments start to take action or think about ways to take action on this kind of stuff. And so it's an election year, and if public opinion is running about what we think it is, at least over the majority support of more restrictive legislation on this, you're going to see legislation at least talking about it so they can talk about that on the campaign trail.

Ted Simons: And have you seen how often have you seen, if ever, a single issue catapult candidate as it has, as this issue has Governor Brewer? Does this happen very often?

Dr. Bruce Merrill: Not in Arizona. But I think it clearly did. If you looked at -- we were following her for many, many months, and frankly she was not doing well in the polls. But I think as Pat has suggested, I really think the underlying things even with immigration, to some degree, is the economy. When you have mass unemployment, when you have fear about the economic future a lot of people, I think it's easy to scapegoat, to find something you can take that frustration out. And I think to some degree that that's happening. We don't like to use those words of scapegoating and things, but the issue is a very complex one. And this is something that people that have a lot of frustration could, because of the rhetoric, can agree with or disagree with without understanding all of the implications of it.

Ted Simons: Let's go to the Democratic side as far as the primaries are concerned. How does 1070 affect them?

Patrick Kenney: Well, one thing the vote on this has been a straight party line vote almost for certain. There might be an exception, but it's been a straight party line vote. So one thing you see, the Democratic house members who are in close races here out last week were fairly outspoken saying, they didn't think the lawsuit was the right time. And so they're cautious. Because -- I don't know about the primary. I think in their primaries they'll be fine. I don't think it's a big issue within the Democratic primary. But they're cautious about the general election because they don't would be to the -- on the wrong side of this issue. It's just 90 days away, roughly.

Ted Simons: Gabriel Gifford, Kirkpatrick, all seen as being someone vulnerable as far as their seats are concerned. How does 1070 affect them come general election time?

Dr. Bruce Merrill: As Pat has said, from the partisan division about 85% of the Republicans are for 1070, 85% of the democrats are opposed. The key in many states including Arizona is this growing independent group. From my polls right now, it looks like they're splitting about 60/40 towards favoring 1070. So democrats have to be very cautious of that because if they get all of their votes out because there's about the same number of democrats, republicans, and independents now. So the key thing is going to be how are they going to handle this, the democrats, with the independents? Because I think that's going to be the key.

Ted Simons: Down ticket items, attorney general treasurer, superintendent of public instruction. Will they be impacted more than things at the top of the ticket?

Dr. Bruce Merrill: Sure. I think Andrew Thomas for instance would not be nearly as viable a candidate as he will be because of his outspoken support for 1070. And so, yeah, I think it will affect potentially a lot of races. I think it could result in the legislature being a little bit more conservative next year.

Ted Simons: Terry Goddard is saying that jobs are his number one priority. That's the number one priority, that's what it is, it always has been, and it sounds like you both believe the economy and jobs is foremost on most people's minds, and yet it seems as though everyone wants to talk about immigration. How does it impact the Goddard campaign? Is anyone listening?

Patrick Kenney: I think -- I was just wondering about that this week. I think the Goddard campaign has to stay on jobs. Let's going to have to engage the issue. As Bruce was talking about earlier, this is the number one issue for the incumbent and the media is following that. There's national attention on it. He cannot get away from this issue. He's got to get involved. He's going to have to be clear about where he is, because she's taken such a clear position. So he's not going to be able to be ambiguous like sometimes you see politicians be. Or more nuanced. I don't think he can be. But what I was thinking about the Goddard campaign, I haven't seen much about his campaign. I don't know what his coffers look like, I would think he should be spending more, and maybe he's waiting for the end of the primary. But we know Jan Brewer is going to be the candidate, I think, and so I think he needs to engage quickly as possible.

Ted Simons: What do you think, Bruce?

Dr. Bruce Merrill: I really agree with that. I think the problem Terry is going to have too is running clean. You don't have a lot of money. The idea of clean elections makes sense in the -- in getting new young people and not having a lot of money. If you get $750,000, whatever you get from clean elections, that's one mass mailing. That is not enough to do what pat is suggesting. He has got to come up, in my opinion, there's only one thing that can save him. And that is to come up with the Goddard plan to rebuild the economy in Arizona. It's got to be clear, it's got to be decisive and he's got to run on that. I think that's the only chance he has.

Ted Simons: Basically he has to be as clear and decisive on the economy as the governor is right now on immigration.

Patrick Kenney: And that's a bread and butter Democratic issue. There's a lot of research that shows what we call owned issues and democrats toned own these jobs issues. And he needs engage that. He just -- but he can't duck the immigration issue.

Dr. Bruce Merrill: Not only that, I think -- so I agree with pat because it's like McCain. I don't think it does any good to pander to a position that you don't -- I don't think they'll vote for it anyway. So I think he's much better off by making very clear his support and why he supports it.

Ted Simons: All right. Very good. Thank you so much for joining us.