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Analysis Of A Hearing Before The Senate Subcommittee on Immigration, Refugees And Border Security On, "Examining the Constitutionality And Prudence Of State And Local Governments Enforcing Immigration Law" (April 24, 2012)[1]

by Nolan Rappaport


Senator Charles E. Grassley (Iowa).[2] When elected leaders in Arizona saw first-hand the results of the Federal government's failure to protect the border or to enforce the immigration laws, they took action to protect their State and their citizens by passing SB 1070. This Administration has sent a message through its enforcement policies that the rule of law is just a phrase to be kicked around and not to be taken seriously. Its policies have led the American people to believe that the laws on the books mean very little. Unfortunately, people are suffering because of the Administration's inaction and amnesty-minded policies.

Comments. What message were previous administrations sending with their lax enforcement policies? The undocumented alien population rose from 3.2 million in 1986, to 11.2 million in 2010.[3] This probably was primarily due to inadequate resources. Although funding has improved for border security since then, interior enforcement still is grossly underfunded.

For instance, Dennis McCann of Chicago was hit and killed by a drunk-driving illegal immigrant who had been released by Cook County, a local jurisdiction that refuses to cooperate with the Federal government on immigration matters. He did not return for his trial. He could very well be drinking and behind the wheel of another car somewhere in the United States right now. Cook County also released an illegal immigrant who is an alleged child rapist. He absconded too. If he really is a child rapist, he may have raped more children since his release. Other jurisdictions, such as, New York City, Santa Clara County, and San Francisco County, also are defying federal law. It's unfortunate that today's hearing does not focus on the untold number of victims that have had to suffer because of their refusal to help enforce the immigration law.

Comments. The Obama Administration knows people are suffering at the hands of criminal aliens. The lax enforcement measures with respect to undocumented immigrants generally are due to giving top priority to removing dangerous criminal aliens.

Senator Dick Durbin (Illinois). [4] SB 1070 makes undocumented immigrants afraid to cooperate with law enforcement, which is why the Arizona Association of Chiefs of Police[5] opposes this law. Also, it encourages racial profiling. Last week, I held a hearing on racial profiling. One of the witnesses was Ron Davis, the Chief of Police of East Palo Alto, California. Chief Davis, along with 16 other chief law enforcement officers and the Major Cities Chiefs of Police Association,[6] filed a brief in the Arizona case before the Supreme Court. One of the points in their brief is that SB 1070's "reasonable suspicion of unlawful presence" requirement for inquiring about immigration status will produce a focus on minorities, specifically Latinos. Instead of measures that harm law enforcement and promote racial profiling, we need practical solutions to fix our broken immigration system. The first step we should take is to pass the DREAM Act legislation that would allow a select group of immigrant students who grew up in this country to earn citizenship by attending college or serving in the military.

Comments. Bipartisan support is needed to fix our broken immigration system. Perhaps the first step should be to establish an effective enforcement program that is acceptable to both sides. That seems to be the sine qua non of bipartisan cooperation on immigration reform.


Arizona State Senator Steve M. Gallardo.[7] The concerns that I bring before you today are based on numerous accounts of the mistreatment many of my constituents have been subjected to at the hands of local law enforcement, as well as racial divisiveness in our communities. SB 1070 has created and perpetuated a climate of fear and division. It has unfairly subjected Latino citizens to racial profiling and harassment. Many Latino women face a horrific situation if they are the victims of domestic violence. If they are undocumented, SB 1070 makes it impossible for them to report their abuser without fear of being arrested and placed in removal proceedings. Also, SB 1070 has shifted the priorities of law enforcement. The focus is away from criminal investigations and placed squarely on local immigration enforcement. This comes at the expense of investigations in rape, assault and murder cases. The Maricopa County Sheriffs Office[8] has come under fire for their failure to investigate approximately 400 sexual-assault cases. Many of these cases involve children. In addition, SB 1070 and laws like it have fostered and legitimized vigilante movements that are responsible for violent, sometimes lethal attacks on Latinos.

Comments. Senator Gallardo is talking about important concerns that need immediate attention, but it may be a mistake to do this without acknowledging the problems that created the need for SB 1070. Despite political rhetoric to the contrary, illegal immigration is causing very real problems in Arizona that need attention too. Is Congress or the Administration working with the Government of Arizona to find a way to address Arizona's concerns that does not involve objectionable state and local police involvement with immigration enforcement?

If SB 1070 has been successful in anything, it has been in breaking up families by separating hard working immigrant parents from their children and in limiting the success of Latino students. These parents and children live in fear of being separated from each other.

Comments. These unfortunate consequences are the result of enforcing immigration laws, not the fact that state and local governments are doing it instead of the Federal government. See, e.g., Thousands of Kids Lost From Parents in U.S. Deportation System

Laws like SB 1070 pander to the climate of fear and division that runs rampant through Arizona. This fear was created with a purpose. SB 1070's true intention, its primary objective, is to make second-class citizens of U.S. Latinos. To discourage them from voting, from going to school, seeking employment and realizing the American Dream. Immigration enforcement is only a secondary objective and by their own admission, the authors and supporters of SB 1070 intended to harass immigrants, to create a hostile and miserable environment so that immigrants would "self-deport." This strategy is reckless and abusive. SB 1070 is neither an immigration policy, nor a legal position but rather a campaign of harassment and intimidation directed solely according to the persons complexion.

Comments. Even assuming these accusations are true, which I doubt, vilifying the other side does not facilitate cooperation or compromise, both of which are needed to make comprehensive immigration reform a reality.

Russell Pearce, President of[9] I am the author of and driving force behind the Support Our Law Enforcement and Safe Neighborhoods Act, known as "SB 1070." SB 1070, in full accordance with federal law, removes the political handcuffs from state and local law enforcement.

Comments. The SB 1070 approach to dealing with illegal immigration is not without support. According to a Fox News poll on Arizona immigration law, which was released on April 20, 2012, 65% of the people questioned believe that individual states should have the right to make their own immigration laws and protect their borders. Between 50% and 65% favor Arizona's immigration law that requires people to show documents proving their immigration status if government officials have reasonable cause to ask for them and it allows police to detain anyone who cannot prove his/her immigration status. The poll is based on live telephone interviews with a national sample of 910 registered voters.[10] It would be interesting to do this poll again with a much larger number of participants.

The invasion of illegal aliens we face today - convicted felons, drug cartels, gang members, human traffickers and even terrorists - poses one of the greatest threats to our nation in terms of political, economic and national security. I have attended funerals of many citizens and law enforcement officers murdered by illegal aliens. My own son, a Deputy Sheriff, was critically wounded in a gun battle with an illegal alien while serving a warrant.

I have been in public service most of my life and I have seen the real costs and damage caused by the presence of illegal aliens in our country. In Arizona alone, the annual cost of illegal immigration is approximately $2.6 billion and that is just to educate, medicate and incarcerate illegal aliens in Arizona. Nationally, the cost is in the tens of billions of dollars and the taxpayers foot the bill. And those numbers do not reflect the costs of crimes committed by those here illegally, or the jobs lost by legal residents. The Federal government's failure to enforce our laws and secure our border is unforgivable.

Comments. What about hardships caused by SB 1070? Notwithstanding rhetoric to the contrary, the opponents of SB 1070 have legitimate concerns that should be addressed.

Had the Federal government enforced our immigration laws, we would have averted 9/11. The terrorist attacks of September 11, 2001, underscored the link between immigration law enforcement and terrorism. Four of the five leaders of the 9/11-attack were in violation of our immigration laws and had contact with law enforcement but were not arrested. Nineteen alien terrorists were able to violate our immigration laws, overstay their visas or violate their Immigration statuses with impunity, and move freely within the Country without significant interference from federal or local law enforcement. Their fraudulent manipulation of U.S. Immigration law was instrumental in the deaths of nearly 3,000 people on that tragic day in America.

Comments. It is not realistic to think that the 9/11-attack could have been prevented by better immigration enforcement. The available information when the 9/11 hijackers sought admission would only have justified the exclusion of a few of them. Once inside the United States, only four of them clearly violated the terms of their admissions, and if they had been arrested and placed in removal proceedings, they would have been released on bond or on personal recognizance pending a hearing before an immigration judge. And they would have had a right to appeal adverse decisions to the Board of Immigration Appeals, and the possibility of further delay by appealing an adverse decision from the Board to a federal court. In any case, the blame should not be limited to immigration enforcement failures. There were other contributing factors. For instance, the security systems in place at the time were inadequate too. The 9/11 Commission Report states the following in this regard:

The FAA [Federal Aviation Administration] set and enforced aviation security rules, which airlines and airports were required to implement. The rules were supposed to produce a "layered" system of defense. This meant that the failure of any one layer of security would not be fatal, because additional layers would provide backup security. But each layer relevant to hijackings - intelligence, passenger prescreening, checkpoint screening, and onboard security-was seriously flawed prior to 9/11. Taken together, they did not stop any of the 9/11 hijackers from getting on board four different aircraft at three different airports.[11]

The Obama Administration does not sue sanctuary cities despite the fact that they are openly in violation of federal law. Instead, it chooses to sue Arizona for enforcing the law.

According to the Phoenix Law Enforcement Association, [12]Phoenix has experienced a 30-year low crime rate since the enactment of SB 1070. Six hundred police vacancies, budget cuts and old policing strategies didn't bring about these falling crime rates. SB 1070 did. The deterrence factor SB 1070 brought about was instrumental in this unprecedented drop in crime. Moreover, all of this was done without a single civil rights, racial profiling or biased policing complaint.

We are here today because the Federal government has decided not to enforce the law. When I was at the Supreme Court in December 2010, listening to the oral arguments in the legal challenge to my E-Verify law, Justice Scalia commented that "nobody would [have thought] that . . . the Federal Government would not enforce [immigration laws]. Of course, no one would have expected that." States, such as Arizona, have no choice but to take action to address the adverse effects of the Federal government's failure to enforce the law.

Comments. But has the Obama Administration really decided not to enforce the law? The facts indicate otherwise. In FY 2011, 396,906 individuals were removed. Of these, 55% or 216,698 of the people removed were convicted of felonies or misdemeanors - an 89% increase in the removal of criminals since FY 2008. This includes 1,119 aliens convicted of homicide; 5,848 aliens convicted of sexual offenses; 44,653 aliens convicted of drug related crimes; and 35,927 aliens convicted of driving under the influence. Furthermore, more than 90% of all removals fell into a priority category in 2011, including Criminal Aliens (55%), Repeat Immigration Law Violators (20%), Recent Border Entrants (12%) and Immigration Fugitives (5%).[13]

The provisions of SB 1070 that were put on hold by the courts are not preempted by federal law, as they utilize Arizona's well-established police powers to address the effects of unlawfully present aliens. These provisions would significantly assist Arizona's effort to protect its citizens from the adverse effects of illegal immigration. This common sense law is fully within the authority of Arizona - and any other state - as it protects Arizona citizens from the effects of illegal immigration and upholds the rule of law.

Comments. The "preemption" principle comes from the Supremacy Clause of the United States Constitution, which reads as follows:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.[14]

Senator Dennis DeConcini (Ret.-AZ). [15] SB 1070 puts law enforcement in an untenable position. Police officers are trained to profile behavior not people. This law does the opposite. Can you tell me what an illegal immigrant looks like and when it is proper to start asking people about their status? I can't. SB 1070 discriminates against anyone with brown skin in my state.

Comments. Police are not authorized by SB 1070 to question people without a reasonable suspicion that their presence in the United States is unlawful and skin color is not sufficient to satisfy that requirement. If the problem is that police question people without a reasonable suspicion, safeguards are needed.

Some statewide political leaders and county elected political officials have claimed that as a direct result of undocumented people coming into our state, horrific crimes have been caused, such as beheading in the deserts of Arizona long the border. These examples turned out to be totally false including those made by our Governor who had to retract them. This demonstrates how political the issue has become. It has not been about creating a law enforcement solution to secure our borders from criminals or about deporting those with a criminal record.

Comments. But are there other reasons for opposing illegal immigration in Arizona that are legitimate?

Todd Landfried, Executive Director, Arizona Employers for Immigration Reform (AZEIR).[16] AZEIR is a 501(c)(4) organization with approximately 350 small, medium and large member businesses that want to see sensible immigration reform passed at the federal level. It was formed in response to the introduction of Arizona's Employer Sanctions law and has been active in the state ever since.

I'm going to focus my remarks on whether laws like Arizona's SB 1070 are good public policy that should be copied in other states or accepted as a federal solution. By "good public policy," I mean what are the outcomes? What are the results of these laws? Do they have the intended consequences? Do they secure the border? Do they open up jobs and reduce state expenses? Do they fulfill any of the numerous promises their proponents make?

The policy of "attrition through enforcement" has been tried before at each and every level of government. It has failed. Failed as in doesn't work. Failed as in causes more harm than good. Failed as in killed jobs, businesses, markets, trade relationships, real estate markets, tourism, stifled cooperation with law enforcement, damaged reputations and the ability to attract high-skilled workers to the State.

According to the National Conference of State Legislatures,[17] 30 states introduced SB 1070 copycat bills in 2011. Direct copycat legislation was passed in only four of the 30 states. This means that nearly 87% of the states rejected Arizona's approach. In fact, if you look at all 1,592 all immigration bills introduced in 2011, only 162 passed, which is a 90% failure rate.

In Arizona, SB 1070 has had a negative impact on the tourist industry. Losses from conventions already cancelled: $490M and 2,761 jobs. Loss of an estimated 150,000 consumers from the Arizona economy at an estimated decline in Gross State Product of $24.4B (9.6%), a loss of 291,000 direct and indirect jobs and resulting loss in tax revenues of $2.1B in tax revenues. Farmers are letting planting less acreage and letting some land go fallow not due to market conditions, but labor shortages. Construction firms are concerned they will not be able to find enough workers to fill job openings, putting projects and contracts at risk.

To be fair, there are studies that show these laws are successful in one aspect: they cause undocumented immigrants to move. Whether they move within the state, out of state, or back home is a difficult question to answer. But what tends to happen to those who remain is we push them deeper into the underground economy, where these workers suddenly become entrepreneurs and open cash businesses, thereby taking even more money out the economy that we would be better off having in it.

Comments. Moving undocumented aliens out of Arizona probably is the main objective of SB 1070, and its success in achieving that objective may be the reason for the large number of similar legislation being introduced in other states. I am not surprised that those bills failed to be enacted in nearly 87% of the states. How many immigration reform bills has the United States Congress passed in recent years? If this hearing is representative, neither side to the immigration controversies is making an effort to understand the other's views or to offer compromises that would make bipartisan cooperation possible.

It has been suggested that SB 1070 is the reason for largest drop in crime in Phoenix in 30 years. Unfortunately, there are no data from the Phoenix Police Department, the Arizona Department of Public Safety, the FBI or anyone else to support this claim. None. Crime rates in Arizona and Maricopa County have been dropping for several years and to suggest that the results of the largest decline in 30 years happened since 2010 (it hasn't) and are because of SB 1070 is reckless at worst and misleading at best. Contrary to the rhetoric, crime studies have found that undocumented immigrants are actually less likely to commit crimes than their domestic counterparts.

Comments. The difference between crimes committed by undocumented aliens and crimes committed by their domestic counterparts is that the undocumented aliens are not supposed to be here. If they were not here, they would not be committing any crimes in the United States.

We spend way too much time asking the question "Are you for or against SB 1070?" We should be asking, "Does SB 1070 work and if it does not, then what should we do next?"

Comments. Excellent questions. I wish this hearing had done more to answer them.

1 Senate Hearing on "Examining the Constitutionality and Prudence of State and Local Governments Enforcing Immigration Law"
2 Statement of Senator Charles E. Grassley
3 September 22, 2011, CRS Report, "Unauthorized Aliens Residing in the United States: Estimates Since 1986"
4 Statement of Senator Dick Durbin
5 Arizona Association of Chiefs of Police
6 Major Cities Chiefs of Police Association
7 Statement of Senator Steve M. Gallardo
8 Maricopa County Sheriffs Office
9 Statement of Senator Russell Pearce
10 Fox News poll: Arizona immigration law
11 The 9/11 Commission Report at p. 83.
12 Phoenix Law Enforcement Association
13 DHS' Progress in 2011: Smart and Effective Enforcement
14 Article VI - Debts, Supremacy, Oaths
15 Statement of Dennis DeConcini (Ret.-AZ)
16 Statement of Todd Landfried
17 National Conference of State Legislatures

About The Author

Nolan Rappaport was an immigration counsel on the House Judiciary Committee. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has spent time in private practice as an immigration lawyer at Steptoe & Johnson. He is retired now, but he welcomes part time and temporary work. He can be reached at

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