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Bloggings on Immigration Law

by by Roger Algase

The Supremes Let Only One Of Arizona's Destructive Winds Of Hate Out Of Their Underground Prison; They Keep The Others Locked Up. Will One Wind Be Enough To throw America's Immigration Ship Off Course?

In Monday, June 25's ID, in what fortunately turned out to be an overly pessimistic prediction that the Supreme Court would uphold most or all of Arizona's Wo sind Ihre Papiere? ("Hand over your papers!") anti-immigrant hate law (WSIP, for short), I concluded by comparing that law to the destructive winds locked up in an underground cave by Aeolus, the storm god, in Book 1 of Virgil's magnificent epic poem, the Aeneid. I also compared the effect of upholding most or all of WSIP (more commonly known as SB 1070), to Virgil's image of letting the winds rush out like a whirlwind across the earth.

Fortunately, the Supremes (whose power might be compared to Virgil's etymologically related: vi superum - "power of the gods" - in the opening lines of the poem), let one only one of the winds out, while keeping the others locked up. This is a situation that Virgil does not anticipate in his description of the storm at sea, which graphically describes the devasting effect of many different types of storm winds all blowing at once.

Will only the one wind which was actually released by the Supreme Court, the wind of WSIP in its narrow sense of directing the police to demand papers showing proof of legal status from anyone stopped or arrested on suspicion of breaking a non-immigration related law, be enough to blow America's immigration ship off course? Probably not, though it may inadvertently make Arizona one of the safest states in America for driving, since making a wrong turn may now put a car on the road that leads directly to detention and deportation for its occupants in many cases.

The destructive winds in Arizona's WSIP law, including the drastic criminal penalties for various immigration violations which were thrown out by the Supreme Court, were meant to act together. If all of them has been let loose, the ship of immigration in that state would surely have been sunk, if not to the bottom of the sea as in the case of many of Aeneas' companions, at least to the bottom of the Grand Canyon.

The same would have happened in many other states which either have enacted even more drastic and terrible laws, such as Alabama, or have copycat laws similar to Arizona's WSIP waiting in the wings. One should not underestimate what the catastrophic effect would have been of criminalizing much, if not all, of the immigration system, as Arizona, and even more so, Alabama, tried to do. It also comes as a relief that the provision giving the police the right to make warrantless arrests of anyone who "looks" illegal, which is essence of fascism, and the opposite of everything America stands for, was thrown out.

However, relief at the fact that some of the worst features of Arizona's WSIP law were invalidated should not obscure the fact that the heart of this law, directing police to check the immigration status of people stopped for traffic violations or otherwise suspected of breaking any law whatsoever (other than the immigration laws) was upheld. This alone will unquestionably highten the atmosphere of fear among immigrants in that state, as well as among American citizens who may not happen to have blond hair and blue eyes. It was certainly intended to, as the sinister and inhumane policy of "attrition" contained in the preamble to SB 1070 makes clear.

This, as much as anything else, shows that the majority was correct in concluding the Arizona was trying to undermine federal immigration law enforcement , not to "assist" it. But then why did the Court not throw out the entire law? Why did it let even one wind out of its cave?

My colleague, Matt Kolken, is amazed by the fact that this part of the decision was unanimous. So am I. Where were the "liberal" Justices? What were they thinking? Is it possible that they may have had their arms twisted in order to produce the appearance of "consensus", under the threat that two of the right wing Justices, Roberts and Kennedy, might otherwise have gone over to the side of the three others who voted to uphold the entire law? We will never know. 

There are many other comparisons that could be made between the destructive power of SB 1070, and its counterparts in other states, and the Aeneid. Just as Virgil mentions an aquae mons, a "mountain of water" in the storm, so a verbum mons  (the poetic equivalent of the prose term mons verborum , or "mountain of words") is being written about the majority decision, and especially, about Justice Scalia's unbelievably vituperative dissent, which can only be compared to the doli...Junonis et irae ("Juno's cunning and rage") described by the great poet.

Indeed, Justice Scalia's incredible animosity toward Mexican immigrants in his dissent bears comparison to Juno's gens invisum ("despised race") of Trojans whom she was determined to stop from immigrating to Italy under the leadership of Aeneas, the legendary refugee (profugus) from Troy, where to say that he would have faced ethnic and political persecution would have been one of the greatest understatements of all time.

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.