By Pratheepan Gulasekaram & Karthick Ramakrishnan. Prof. Gulasekaram teaches Constitutional and Immigration Law at Santa Clara University, and Prof. Ramakrishnan teaches in the Political Science department at University of California, Riverside. The empirical work referenced in this post is part of a co-authored book project exploring the political genesis and legal implications of state and local immigration laws.
Defiant in his Arizona v. U.S. dissent, Justice Antonin Scalia posits a surprising theory of immigration law, arguing that even in modern constitutional interpretation, an individual state can exclude persons from entering its borders and can have its own immigration policy. His novel theory appears to rest on assumptions about the demographic “facts” of unauthorized immigration and the public policy problems ostensibly faced by Arizona. He confidently maintains that the state “bears the brunt of the country’s illegal immigration problem,” and follows that suggestion with several other claims regarding the “siege” that citizens may feel when illegal immigrants invade property, use social services, and endanger citizen lives.
Quite rightly, Judge Richard Posner of the Seventh Circuit took Scalia to task for these unsupported statements in a recent article for Slate.
But Scalia is not alone in making these unproven assumptions about the relationship between immigration-related demographic change, the public policy concerns created by that change, and the necessity of state and local response. Indeed, both former Arizona governor Janet Napolitano (now, Secretary of the Department of Homeland Security) and her successor Jan Brewer cited the unique issues faced by Arizona as justifications for the state’s mandatory E-Verify law and SB 1070. Even Justice Anthony Kennedy, in the first sentence of his majority opinion in Arizona, presumes that the state enacted SB 1070 to address the “pressing issues” related to a large population of undocumented immigrants.
These statements form what we have termed the “conventional” explanation for state and local immigration law. According to this oft-repeated, but rarely investigated wisdom, federal legislative inaction combined with the crushing demographic pressures from unlawful migration virtually compel state and cities to react. The logic seems intuitive – a flood of undocumented immigrants is causing cultural, social, criminal and economic upheavals that must be addressed by affected jurisdictions. The proof appears manifest – cites like Hazelton, Pennsylvania and Valley Park, Missouri, as well as states like Georgia, Utah, and Arizona have all enacted immigration laws in the last five years while Congress has passed none.
As Judge Posner points out, however, claims about the consequences of immigration and related governmental responses, require verification, citation, and support. Indeed, our systemic study of immigration-related proposals and enactments in all 50 states and over 25,000 local jurisdictions in the country confirms that immigrant-induced demographic change and its purported policy challenges have little to do with this current spate of state and local attempts at immigration regulation.
Undoubtedly, Arizona has experienced great increases in immigration over the past decade or so. But, other border states such as New Mexico and Texas have experienced even greater estimated increases in their undocumented immigrant populations, and in California, undocumented immigrants form a much larger portion of the labor force than in Arizona. Yet, none of those other border-states have passed SB 1070 type laws. In addition, violent crime in Arizona has been declining in recent years.
States that have followed Arizona’s example - like Alabama or Mississippi - tend to be places that have not experienced significant increases in immigration or immigrant-created social and economic problems. What these states share with Arizona is a partisan composition within their legislative and executive branches that is highly receptive to enforcement heavy proposals.
In fact, our research reveals that political partisanship consistently predicts when states and localities will introduce and pass immigration enforcement laws, irrespective of immigrant-induced policy challenges. As an example, at the local level, restrictive ordinances are 93 percent more likely to pass in Republican counties than in Democratic ones, and at the state level, the difference is 47 percent. Places like Arizona and Alabama are mostly Republican where officials can push restrictive bills and where primary voters can be relied on to support restrictionist proposals.
Our underlying point is simple. In the field of state and local immigration law, demographic change helps elected officials, restrictionist advocates, and even Supreme Court Justices tell compelling, but ultimately unsupportable, stories about the necessity of state immigration policy. These state and local laws cannot be defended as natural or necessary reactions to recent undocumented immigration. They do not arise out of economic or social necessity; instead they are the products of political opportunism.
Justice Scalia’s incorrect claims regarding the consequences of unlawful migration and the challenges faced by Arizona showcase why untested assumptions about undocumented immigrants are so dangerous. They help form the basis of impossible theories of the Union, whereby states have inherent power to create their own laws regulating the entry and exit of inhabitants. Moreover, they change the constitutional conversation about state immigration regulation, building an unsubstantiated case for the necessity of state intervention. Finally, they obscure the actual, highly partisan mechanism at work in the creation of these restrictive laws.
[image via The Higgs Boson]