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Bloggings on Law

by Roger Algase

Many states are waiting for a green light from the Supreme Court to enact their own intolerant immigration laws. But do the anti-immigrant bigots of America need to brush up on their Plutarch?

Reading the Supreme Court argument on the Arizona immigration law case is a disheartening experience. The questions from both liberal and right wing justices focused, not on the big issue of prejudice and harrassment against Latinos and other brown-skinned people, but mostly on technical points, such as how long a US citizen could get locked up while his or her immigration status was checked.

American citizens? Locked up over immigration? What is happening in America? Why did the Obama administration give up the racial profiling argument when it sued to block the Arizona law from going into effect? This opened up the way for Justice Scalia's sarcasm, which may have been directed as much against the Obama administration's lack of guts to raise this fundamental issue as any perceived weakness of the government's federal preemption argument.

This is not to say that the federal preemption of immigration argument is entirely without merit. The preamble to the Arizona law, making "attrition", (or "self deportation", as Romney calls it), the public policy of Arizona, directly contradicts federal immigration law. But this point was only alluded to, not forcefully argued by the government.

Nor did the government try to refute Justice Scalia's completely unjustified assumption that deportation is the only way to "enforce" the immigration laws. One has to wonder whether either the justices or the lawyers arguing the case knew very much about how the immigration system actually works.

But just as was the case in the health care reform law oral argument, the government seems to have been outmaneuvered and out-argued, not to mention intimidated, by the force of the right wing opposition. If the Wo sind Ihre Papiere ("Papers, please") provisions of the Arizona law are upheld by the Court, as appears likely (the criminal provisions will probably be struck down, with only Justices Scalia and Thomas dissenting, as in Kentucky v. Padilla), many other states are waiting to pass similar laws.

According to an April 29 article in The Guardian, not only will Alabama, Georgia, Indiana, South Carolina and Utah be free to move ahead with enforcement of their own draconian anti-immigrant laws, but states diverse as Mississippi, Pennsylvania, South Dakota, Kansas, Rhode Island and Minnesota, as well as possibly Kentucky and Virginia, may see copycat versions of Arizona's law introduced in their legislatures.

The result would not only be devastating for the people most immediately affected, namely brown-skinned immigrants, their American family members, their communities and the thousands of businesses that depend on them, but America as a whole would be set back two generations, to the time before the civil rights era when the country was torn apart by racial divisions over the Southern segregation laws. 

But even if some of the worst features of Arizona's law are upheld by the Supreme Court on the phony pretext that the state is only "assisting" the federal government in "enforcing" the immigration laws, there are things that the administration could do to stop the atates from subverting whetever vestiges of reason and humanity, if any, may still exist in federal immigration enforcement policies.

The administration could, for example, terminate the authority of state or local officials to act under INA Section 287(g) or "Secure Communities" in any state or locality which enacts an immigration law similar to Arizona's. But this will never happen as long as this administration continues to pursue its own draconian immigration policies, such as deporting more than 40,000 parents of American children. 

The sad truth is that the reason why Arizona may be successful in upholding major parts of its law in the Supreme Court is that the state is in fact acting in harmony with the spirit, if not necessarily the letter, of America's Deporter in Chief, President Barack Obama. This administration, which is deporting almost 400,000 people per year, is part of the problem of governmental racism and hate toward brown skinned immigrants, not the solution, as my colleague Matt Kolken tirelessly and rightly points out.

However, if anti-immigrant demagogues succeed in having much of Arizona's law upheld in the Supreme Court, they may come to regret it. If voters in Latino and other minority communities take action and form a movement to make pro-immigrant policies a sine qua non for being elected to office at any level, just as the Tea Party has been doing with the tax issue, the bigots of America might need to open up their copies of Plutarch and refresh their memories about the stirring victories of King Pyrrhus of Epirus.

About The Author

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.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.