Reason over hysteria: keynote essay.

AuthorHing, Bill Ong
PositionSymposium on Federalism at Work: State Criminal Law, Noncitizens and Immigration Related Activity
  1. INTRODUCTION

    On the morning of July 13, 2006, Dr. Agapito Lopez opened the door to his office that he shares with the Migrant Education Program in Hazleton, Pennsylvania. A packet containing a pamphlet had been slipped under his door, with an attached note to the doctor exclaiming: "Read this! You may learn something!" (1) The first page of the pamphlet began: "European Americans are being dispossessed of their own nation. We are under invasion by millions of unskilled Mexicans who threaten to bankrupt us." (2) The pamphlet continued:

    Will America become the United States of Mexico?... The consequences which this immigration disaster holds for our children is [sic] horrendous. Coloreds will take political control of more states, along with both houses of Congress and the presidency. Whites will quickly be stripped of their rights with our wealth confiscated for redistribution to non-whites as is taking place in South Africa. (3) That day, the city of Hazelton passed the "Illegal Immigration Relief Act Ordinance." The ordinance barred landlords from renting to undocumented immigrants through a provision that defined "harboring" of an "illegal alien" as the leasing or renting of a unit to someone who is in the United States in violation of the law. (4) Another section barred private employers from hiring "unlawful workers." (5) An English-only provision barred city employees from using or distributing any translated forms or notices. (6)

    We are a nation of immigrants, but we also are a nation that loves to debate immigration policy, and that debate reflects the battle over how we define who is an American. The anti-immigrant movement in the United States is as strong as ever. Immigrant bashing is popular among politicians, talk radio hosts, private militiamen, and xenophobic grassroots organizations. They take full advantage of the high-tech era in which we live, as they complain about the "illegal alien invasion." Their common thread is the rhetoric of fear. This hysteria leads to tragic policies that challenge us as a moral society. Immigration and Customs Enforcement (ICE) raids, enormous funding for border enforcement, anti-immigrant ordinances and state laws, and record levels of detention are manifestations of the venom, while immigrants and citizen relatives are forced to suffer.

    Arizona's SB 1070 is an example of the hysteria-driven results. (7) The controversial law would make it a state crime for an alien to be in Arizona without carrying the required documents, bar state and local officials from enacting sanctuary laws, and crack down on those sheltering, hiring, and transporting undocumented aliens. (8) The intent of the legislation is to make life miserable for the undocumented in Arizona in hopes of achieving "attrition through enforcement." (9) Critics charge that the law invites racial profiling and exceeds state authority. (10)

    In this essay, I provide an overview of the background on local and state laws that attempt to regulate immigration, how much of the racist attitudes toward immigrants have become institutionalized within the current immigration system, and current enforcement strategies that prey heavily on immigrant workers who are victims of trade policies and globalization. I argue that given an understanding of how our nation's immigration laws have evolved in the context of globalization we should calm down and stop the anti-immigrant rhetoric. We should gather ourselves and use our collective wisdom to address immigration policy and the need for reform in a thoughtful, reasoned manner.

  2. HISTORICAL BACKGROUND ON STATE REGULATION OF IMMIGRANTS

    Anti-immigrant ordinances and laws at the state and local levels are nothing new. The original thirteen colonies attempted to define their new America by promoting immigration only to select groups. As early as 1751, no less an icon of the New World than Benjamin Franklin opposed the influx of German immigrants, warning that "Pennsylvania will in a few years become a German colony; instead of their learning our language, we must learn theirs, or live as in a foreign country." (11)

    After independence, a number of states instituted legislation aimed at the poor from abroad as well as those from other states; in Massachusetts, the 1794 poor laws imposed a penalty on any person who knowingly brought a pauper or indigent person into any town in the Commonwealth and left the person there. (12) Immigrants also faced religious bias, which could often limit one's choice of domicile in the New World. In the spirit of the time, colonial charters frequently denied admission to Catholics. (13) Virginia passed laws ordering that Quakers be detained and deported; death was the punishment for a third unlawful entry. (14)

    Racial bias was also pervasive. Prior to the Civil War, Southern slave states adopted legislation prohibiting the migration of free blacks and urged free Northern states to do the same. Since many residents of the North were prejudiced against blacks, several free states obliged, either blocking the movement of blacks into the state or requiring good behavior and assurances that blacks would not become public charges. (15)

    Of course, well into 19th and 20th centuries, enactment of anti-immigrant state laws and local ordinances continued. The racist laws directed at Chinese in the West have been well-documented. San Francisco's infamous no-wooden-laundry law aimed at Chinese laundries ended up in the Supreme Court in Yick Wo v. Hopkins. (16) The preclusion of Chinese witnesses testifying against whites in California courtrooms was upheld by the California Supreme Court. (17) A Tucson petition argued for requiring all Chinese to live in a "Chinatown." (18) Throughout the West, alien land laws prohibited Asian immigrants from owning or leasing land. (19) And throughout the country, many states' anti-miscegenation laws were enforced against immigrants of color as well as blacks who attempted to marry whites. (20)

    Eventually, all of these laws and ordinances were struck down as either violations of the Fourteenth Amendment or preempted by federal law. Because Congress was deemed to have plenary power over determining who should enter the United States or be deported, local and state laws construed as attempts to regulate immigration were ruled unconstitutional. For example, in Graham v. Richardson, (21) the Supreme Court struck down a bar to state welfare benefits for lawful resident aliens. In Sugarman v. Dougall, (22) the Court invalidated a citizenship requirement for state civil service positions. In In re Griffiths, (23) the exclusion of lawful resident aliens from the practice of law in Connecticut was invalidated. Similarly, in Bernal v. Fainter, (24) the Court ruled unconstitutional a state citizenship requirement for notary publics. In all of these cases, the court applied strict scrutiny to the alienage classification.

    One of the high points in this line of cases is Plyler v. Doe, (25) striking down a Texas law that denied undocumented children access to elementary and secondary public schools, despite the fact that undocumented status was not deemed a suspect classification and the Court had never deemed the right to education fundamental. The Court noted:

    [M]any of the undocumented children disabled by this classification will remain in this country indefinitely, and ... some will become lawful residents or citizens of the United States. It is difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime. It is thus clear that whatever savings might be achieved by denying these children an education, they are wholly insubstantial in light of the costs involved to these children, the State, and the Nation. (26) Plyler was the authority relied upon by the federal district court in repudiating the education restrictions of California's Proposition 187 in the 1990s. (27)

    In spite of the case law striking down these anti-immigrant state laws primarily on equal protection grounds, the Supreme Court did carve a huge exception for states to limit certain "public functions" jobs to U.S. citizens in spite of well qualified lawful resident applicants. Beginning with Foley v. Connelie, (28) the Court has deferred to a state's requirement of U.S. citizenship when the position entails a public function, or involves the "formulation, execution, or review of broad public policy." (29) Thus, in Foley, the Court held that New York could bar aliens from holding state law enforcement positions. (30) In Ambach v. Norwick, (31) the Court ruled that public school teaching fell within the public functions exception as well, even though a French immigrant was applying to teach high school French. Similarly, in Cabell v. Chavez-Salido, (32) the Supreme Court held that probation officer positions in California could be limited to U.S. citizens.

  3. ECONOMICS AS A PRETEXT

    Racism appears to be the real problem behind ordinances such as those enacted in Hazelton, because the laws make no economic sense. After losing the case, the city was ordered to pay $2.4 million in attorneys' fees. (33) By June 2009, the city had already spent over $2.5 million on its own legal fees. (34) Aside from the fees, the purported economic premise of the ordinance was problematic. Ordinance supporters argued that undocumented immigrants strained and burdened Hazelton's coffers. (35) However, at trial, the plaintiffs were able to establish that immigrants actually bolstered the local economy:

    In 2000 ... Hazelton was a city of 22,000 people, and that number for years had been declining. The City also was in economic decline. When the [new] Mayor came into office, he inherited a budget deficit of between [$500,000] and $700,000. Over the following five-plus years, Hazleton's population...

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