There seems to be wide agreement that punitive state laws, such as the ones in Alabama, Arizona, Georgia and elsewhere, are not the answer to America's immigration problems, but are only increasing racial divisions and punishing people who present no danger to society, or actually make positive contributions to our economy. But there is also a widespread misunderstanding about the origins and significance of these laws. If we want to avoid even more of these laws, and even worse ones, we need to realize what the motivation is behind them.
According to conventional wisdom, harsh anti-immigrant laws in the states are merely reactions to the inability of 1) the Obama administration to enforce existing immigration laws and 2) Congress to agree on immigration reform. The first proposition, as we all know, is utter nonsense. 400,000 deported people in each year of the Obama administration can attest to that.
The second proposition is also without merit. How can Congress be expected to agree on immigration reform when the same people who are behind the punitive state laws are fighting tooth and nail to block any positive movement at the federal level? An example, which I have frequently mentioned, but is worth repeating, is the infamous House bill, H.R. 3447, that was passed in late 2005, the last time the Republicans controlled that chamber before now. That bill was, in effect, a template for criminalizing the entire immigration system and imposing draconian penalties for even the most technical immigration violations.
As I wrote at the time in a different forum, if that bill had become law, no foreign citizen in his or her right mind would have wanted to come to the US with any kind of visa from any country, for fear of incurring a five year jail sentence for technicalities completely beyond the person's control. What possible motivation could there have been for such a horrendously punitive bill (which, fortunately. never even made it to the Democratic controlled Senate)? In 2005, the economy was booming and unemployment was low.
If such a bill had passed the Congress and been signed into law, there would have been no federal pre-emption argument against it. Therefore, the whole debate over whether the states have the right to pass their own immigration restrictions is, in this respect at least, beside the point. What would happen if Congress passes an anti-immigrant law that makes Alabama's look like a manifesto of immigrant rights by comparison? More to the point, what will happen if and when the Republicans take over both houses of Congress?
In that case, we would have to look to individual states, or municipalities, as the only outposts of racial equality and human rights for immigrants left in America. Unless Americans fight against bigotry and intolerance against all minorities and the disadvantaged, including Muslims, gays, women, and African-Americans, we may soon see legislation at the federal level, and in many other states, that would send immigrants and other minorities rushing to Alabama and other current citadels of hatred for sanctuary.
Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years