By Roberto Suro
Sunday, August 1, 2010; B01
Arizona's immigration law was never going to solve the problem of illegal immigration. That is not its purpose. Instead it is an invitation to a shootout in which there will be no winners. It is more of a provocation than an attempt to enact policy, and as a protest against Washington's failure to fix a broken immigration system, it resonates.
A preliminary injunction issued by U.S. District Judge Susan R. Bolton on Wednesday halted several major parts of the law, but it really did nothing more than set the terms for more litigation. A tortured path to the U.S. Supreme Court seems likely, though even the nine justices won't be able to settle the heart of the matter. If Arizona ultimately wins in court, states could end up obliged to fashion their own immigration controls. If the federal government wins, President Obama could find himself running for reelection on a devilish issue he has done his best to avoid.
The authors of Arizona's SB 1070 set out to accomplish two main goals: They wanted to attack legal precedents that have given the federal government almost total say over immigration matters since the 1890s under a doctrine known as "preemption." They argue that Washington has failed to control illegal migration, so states should have a chance. They also wanted national attention for their solution: a strategy they call "attrition through enforcement." The idea is that if illegal immigrants constantly fear arrest by state and local cops, they'll leave the country on their own. By promising a crackdown in defiance of Washington, Arizona achieved both objectives as soon as the law became a national controversy this spring.
Remember Proposition 187? That 1994 California ballot initiative also combined anxiety over illegal immigration with a big dose of anger at an ineffectual federal government. California voters had their rant on Election Day, but, like SB 1070, Prop 187 got tied up in federal litigation, and there it died -- legally speaking. The voters' ire lived on politically. Before the 1996 elections, President Bill Clinton and congressional Democrats put strict limits on immigrants' access to welfare and health programs, and they enacted the toughest immigration enforcement measure in a generation.
SB 1070 has the potential to have an even greater impact on the debate over immigration, even if it dies in court. The stakes are higher this time. We are into the third year of a brutal economic downturn, and Washington gridlock has had a stranglehold on immigration policy for even longer.
Immigration policy needs to be about a lot of things, including national identity and security, but right now it needs to be about getting the economy's pulse up and improving our global economic competitiveness. These challenges are macro. The Arizona law offers micro solutions. It argues that immigration can be a law enforcement matter and pushes the decision-making down to the state and local level. That's a false hope regardless of where you stand on the issue, but it's a false hope that has struck a chord with many Americans.
Nearly two dozen state governments have contemplated copycat measures, and support for Arizona has become an article of faith for Republicans on the campaign trail. Democrats are scrambling. That makes sense given the public opinion polls showing broad agreement with the Arizona law and its get-tough approach. A Pew survey in June, for example, found that a solid majority of the public (64 percent) approves of the law, with its requirement that police verify the immigration status of anyone they stop if they suspect that the person is in the country illegally. Several other recent national polls show majorities supporting SB 1070. But the policy challenges in immigration are never single faceted, and the public knows that.
Perhaps more than other issues, immigration requires balancing multiple interests and objectives: satisfying both employers and workers, being both fair and strict, for example. As a result, public opinion can seem ambivalent. The same Pew survey that found backing for Arizona also showed that more than two-thirds of Americans (68 percent) support a path to citizenship for illegal migrants who pass background checks, pay fines and have jobs. That's not much different than other Pew surveys going back before the recession. Indeed, a majority has been saying for several years that it wants to see illegal immigration brought under control, but not with harsh measures. The recession has increased anxiety about getting this done, and Arizona offered a vehicle for expressing impatience with Washington's bipartisan dithering.
The frustration has been building quietly since the last big push to overhaul the immigration system ended in June 2007 with the Senate locked in a stalemate. After more than a year of political drama, including massive immigrant marches in the spring of 2006, legislation had emerged with backing from President George W. Bush, some Republican moderates and most Democrats. It would have increased enforcement, offered legalization to the current population of illegal migrants and created measures to regulate future flows, including a temporary-worker program. But conservative Republicans attacked the legalization program as an "amnesty" for law-breaking migrants, while liberal Democrats split over the terms of the temporary-worker program. Comprehensive immigration reform, as proponents dubbed it, failed to get the 60 votes necessary to move through the Senate. Since then, nothing has shifted that political accounting, not even the 2008 election, which changed so much else in Washington.
As a presidential candidate, Barack Obama promised to undertake comprehensive reform during his first year but never really got into the details. After he took office, he repeatedly postponed consideration of the issue, never fully defining his position while blaming Republicans for blocking progress. Meanwhile, congressional Democrats, with no one to replace their longtime leader on immigration, the late senator Edward M. Kennedy (Mass.), never quite managed to resolve the differences that divided them in 2007 or come up with a new proposal. The result was a vacuum, and Arizona filled it.
Immigration had practically fallen out of the public discourse and the news media until Republican Gov. Jan Brewer signed the measure on April 23. Then the topic roared back, and the Obama administration's decision to oppose the law guaranteed it the spotlight for a long time.
Through its lawsuit, the Obama administration has in effect said, "Immigration is a federal issue; let us, not the states, handle it." If the Supreme Court agrees, Obama will be morally and politically obliged to move aggressively on a matter he has avoided. His reluctance so far is understandable: He has had other priorities; there is no consensus within his party on key aspects of the issue; and he has never taken a stand on the details that bedevil any effort at consensus.
Moreover, immigration is his worst issue as far as the public is concerned. It has consistently brought him the lowest approval ratings among nine issues Pew regularly asks the public to rate his performance on -- with scores (25 percent to 33 percent) comparable to those for Bush's handling of Hurricane Katrina. But Obama may find himself campaigning for reelection based on how he handles immigration.
If the courts end up backing Arizona and the states are authorized to get tough on immigration, many Americans, especially those most anxious about the problem, will be disappointed with the results. Arizona doesn't claim to have the power to enact a full range of immigration policies, deciding who gets in, under what terms and for how long. There is no chance that the courts would allow such a sweeping grab of federal powers. The law's supporters insist that the state merely wants the right to apply existing federal laws, using its own police and its own tactics -- what they call "concurrent enforcement." But this doesn't make sense. If the federal laws are fundamentally flawed, then no amount of enforcement, no matter who does it, will solve the problem.
And everyone, starting with the folks most adamant about enforcement, agrees that the laws are flawed. To begin with, there is no effective means to hold employers accountable for hiring illegal workers. They can shrug when it turns out that their employees had false papers. They can't be held at fault because the country has repeatedly rejected a national ID card and other measures that would allow an employer -- or anyone else -- to know with certainty that people are who they say they are. Repeated enforcement actions by Washington over the past 20 years have not cut the size of the undocumented population. Illegal flows have followed the ups and downs of the unemployment rate, not the pace of factory raids.
Regardless of how the court battle is resolved, the Arizona law's likely legacy is a focus on enforcement in the next round of policymaking, plus long arguments over the role of state and local cops. Effective enforcement that deters illegal immigration is essential, but it may be easier to achieve as an outcome rather than a starting point. This is not a semantic difference. Enforcement has been the starting point for almost every immigration debate over the past 30 years, and look where that's gotten us.
Close the "back door" to illegal immigration so that we can keep the "front door" open to legal flows -- that's how the Rev. Theodore M. Hesburgh, then president of Notre Dame, summarized the recommendations of the congressionally appointed commission on immigration reform that he chaired in 1981. The same basic construct has guided the immigration debate in the United States ever since. Our framework for thinking about immigration starts with the idea that the country can be sealed and that government can stand at the entries deciding who gets in. In the age of a globalized economy, we don't think about capital that way, nor goods or commodities or information. Instead, we know there is a constant interchange taking place across networks connecting many elements of many societies. Government needs to police extreme behavior in those networks, but it cannot control everything that enters and leaves the country. It needs policies to shape the channels, not constant scrutiny of the transactions.
If you think about immigration in those terms -- as one more type of interchange -- then you can envision long-term goals that enhance our global competitiveness. We need to manage immigration as part of our relations with sending countries such as Mexico, and we need to be deliberate about its impact on our national identity. Then it isn't just a matter of deciding who gets into the country. It requires a broader view, starting with the causes of migration and stretching to policies that help migrants and their children integrate into our society. Do this with an efficient bureaucracy, and such policies could reduce the incentives behind illegal flows, easing the enforcement challenge. That's the opposite of Hesburgh's prescription: Keep the front door open as part of a broad engagement with the world, and not many people will need to come in through the back door.
That's also the opposite of what Arizona proposes. The relentless focus on catching people who aren't supposed to be here is bad enough; a long marshals-vs.-sheriffs shootout is a dangerous distraction. No matter what kind of new immigration system you want to build, lawsuits over who handles traffic stops won't get you very far.
Roberto Suro is a professor at the University of Southern California's Annenberg School for Communication and Journalism. on washingtonpost.com 3 He will discuss this article on Monday at noon at washingtonpost.com/liveonline. He will be online Monday, Aug. 2, at Noon ET to chat. Submit your questions and comments before or during the discussion. From the Outlook archives on the immigration debate: "5 myths about immigration," "All-American, just not on paper," and "Why good fences make bad policy."