The Justice Department has made its case against Arizona’s SB 1070. Few Americans know that the Bush Justice Department confronted a nearly identical Law in 2007, and, they did a smarter job of handling it.
Justice Sonia Sotomayor is right. A challenge by the Department of Justice to Arizona’s ALEC-funded anti-immigration law without addressing the issue of racial profiling makes no sense at all.
However, it should not have come as a surprise to her. The lawsuit that the Justice Department filed in 2010 was not based on the Equal Protection clause of the Constitution (our right as Americans to equal protection under the law regardless of race, gender, creed or sexual orientation). It was based on the Supremacy clause of the Constitution, which clarifies that our 50 states are part of a single country, and that the federal government has sole jurisdiction in matters such as foreign relations and immigration.
I shot the video below in Phoenix, AZ on May 30, 2010, a month before SB 1070 was blocked by a federal judge. The speaker, who later joined the Justice Department, makes a stronger argument here than the Solicitor General apparently did yesterday on both the argument the Justice Department chose, and, the one they chose to avoid.
But why? Why did they choose to avoid the equal protection (racial profiling) argument? I think it was a political calculation, but more on this in a moment.
I wonder if Justice Sotomayor knows that the Justice Department under President G. W. Bush was faced with the same conundrum in 2007 and 2008, when Prince William County, VA passed a precursor to the Arizona/Alabama law (drafted and pushed by the same anti-immigrant lobbying firm). I wonder if she knows that the Bush Justice Department did a better job of handling it (albeit with less pressure from a hyper-partisan One Percent Media).
The Virginia law, which went into effect on March 6, 2008 in one of the nation's largest and most wealthy counties, was the first in the nation to require (not allow, require) police officers to detain people and check their immigration status based on a subjective standard of suspicion. The Bush Justice Department didn’t like this one bit. But instead of filing a lawsuit based on the supremacy clause, they simply informed the county government that they planned to join an inevitable lawsuit concerning racial profiling. They said, in effect,
“Go ahead and implement this law and let’s see what happens. As soon a citizen or person who is legally present in the United States is racially profiled by one of your officers trying to abide by this law, the Justice Department will join the law suit, you will lose, and here's what else will happen....”
The threat of such an embarrassing law suit — plus the millions of dollars in legal fees that would go with it — was one of the driving factors in the Republican-dominated Board of Supervisors’ decision to repeal the "probable cause" mandate only eight weeks after its implementation. The other factors were the alarmingly negative impact the law was having on:
- Local economy — highest foreclosure rate in the region by a factor of five, businesses began closing down as consumers, workers, and business owners left the county
- Public safety — crime went up for the first time in many years as trust in the police fell to an all time low
- Fiscal solvency — implementation of the law was expected to cost more than $26 million, which looked especially bad to voters when coupled with a 25% tax increase, which would have been 33% had they decided to continue implementing this mandate.
According to "The 700 Club" news report which I happened to watch last night, it is assured that the Supreme Court will uphold SB 1070, at least based on the case filed this time around. In the future, the Obama Justice Department may end up making good on the threat that the Bush Justice Department used to put an end to the law's precursor. Or, perhaps it will be the People, not the Courts, who repeal SB 1070 after it has gone into effect and has had the same tragic, but predictable impact that it had in Prince William County and in Alabama. In Mesa, Arizona a trans-partisan coalition recalled and replaced the corrupt, anti-immigrant president of the Arizona State Senate, Russell Pearce, in large part because of his obsession with immigration, and in part because of his ties to the private prison industry and the shadowy corporate lobbying syndicate ALEC (American Legislative Exchange Council).
A Message for the President
If I could speak to President Obama about one subject it would be Comprehensive Immigration Reform (CIR). If I could give him one piece advice, it would be, “Don’t be afraid to engage on issues that deal with race.”
Our long term deficit problems have to do with our birth rate. Since the Baby Boomer generation, we have not reproduced at a fast enough rate to sustain a growing economy. We are not going to have a second baby boom. An immigration boom is needed to balance the ratio between Americans of working age who fuel our economy, and Americans of retirement age who need and deserve our support and care. That ratio is getting worse and worse every day as the first of the Baby Boomers retire. This is the reason why our deficit and debt prognosis looks so bleak. This is why we have a fiscal emergency when it comes to health care. But if we passed CIR, our economy would grow at a rate much faster than what is possible with our current work force. This will increase our gross national product (GNP) and our tax base, allowing us to address our deficit and debt problem without making the same tragic mistakes Europe has made, cutting back on public investment so severely that economic growth becomes improbable if not impossible. CIR is the solution to so many of our problems. It astounds me that so few of our leaders are able or willing to recognize that.
My reading of the President’s reluctance to engage on the immigration issue has to do with race relations in America. Obama is a mixed race person who is, and feels, no more black than he does white, and, who spent the majority of his childhood in places where there is no white majority. I believe there is something that pains him, and even intimidates him about white people who organize around racial resentment, anxiety, or hatred.
Or, perhaps I am projecting. Like the President, I am biracial, and, I went to middle school and high school in Hawai’i. For me, there has always been a shifting complexity in the relationship between my racial identity and how my racial identity is perceived. I can almost understand the dread with which a person of African ancestry might view political organizing centered around racial hatred. Having lived through what I did in Prince William County, Virginia (I co-directed with Annabel Park a film called 9500 Liberty which documents the events described above), I understand better than most Americans the dangers of political organizing designed to divide people by race. But I have also seen ordinary citizens pull together across racial and cultural divides — I’ve seen them come together across partisan divides as well — and if there is one thing I think I do understand a bit better than the President it is this: When people organize around negative emotions, it is not because they are strong; it is because they are weak.
I wish that the White House had pushed for immigration reform in the first 100 days of Obama's presidency. What if he’d extended a hand to John McCain and Lindsay Graham before the “Tea Party” narrative replaced the news on cable television, and before the nation became so bitterly divided that politicians on both sides of the aisle backed away from the immigration issue for fear of a cultural implosion?
At the time when the decision was made to challenge SB 1070 on the supremacy clause rather than on equal protection, it seemed to many that the “Tea Party” obstruction/electioneering strategy was, if not unstoppable, the most dangerous threat to the President's reelection. And, although few dared to say it, it was clear that the Tea Party movement was being fueled by, if not dominated by, anxiety over demographic shift and the symbolic meaning of Obama's election. So, an argument on the part of the federal government that the Constitution guarantees equal protection for minorities in America — especially in the context of a hot-button issue such as immigration — would play right into the power inherent in exploiting racial anxiety and racial resentment. It would futher divide America, and further strengthen the elite power brokers who were fomenting division in order to orchestrate an anti-Obama backlash.
It is often said that the United States was not ready to have a black President in 2008. If this is so, then it should also be said that our President was not prepared to lead a nation torn asunder by that very fact. This is not a criticism. Obama has been exceedingly cautious on issues that touch upon race, for reasons that I acknowledge and understand. But this has hurt us on immigration. And, for this the nation of immigrants, made great by immigrants, that's a problem.
In other words, the Justice Department took the weak route in trying to prevent the economic, fiscal, and public safety disaster that SB 1070 prescribed. They should have made the argument that forced them to deal with race. Yes, it's true, the immigration issue cannot be discussed without taking on the issue of race, but guess what — when the President of the United States is black, neither can ANY OTHER ISSUE.
I mean, who would have predicted that our television sets could engender a culture war over health care, and that otherwise good and decent Americans could be made to hate the idea of affordable insurance?
Tonight, on the first airing of our new, immigration-focused Coffee Party Radio show, you’ll hear from some people who will make the case for CIR based on the needs and interests of our immigrant communities. While I sympathize with this point of view, I will try to argue that this should not be the only argument — not if we want to make progress. By focusing on the plight of immigrant families under our broken immigration system, we forget to point out that CIR is crucial for our economy, for our public safety and national security, and for the fiscal solvency of our federal, state, and local governments. Worse, by not engaging on these issues, we create the opportunity for anti-immigration lobbyists and media propagandists to claim that anti-immigration hysteria helps our economy and that having law enforcement spend time and resources on immigration paperwork instead of public safety will make our communities safer. If you haven't noticed, they've been making this specious argument for years, and they're winning for two reasons:
- Immigrant advocates focus too much on the plight of immigrants and not enough on the best interest of our nation as a whole, and
- People who are not directly impacted by anti-immigrant laws tend to stay out of the discussion because we find racially-charged issues distasteful.
We need to get over that, and to do so, we need President Obama to step up, not after he is reelected as he recently promised, but now.
The White House, the establishment wing of the GOP (the Bush family for instance), the business community, Wall Street, the law enforcement community, labor, the religious community, and the overwhelming majority of Americans support CIR. Why don’t we have it? Because too many leaders in the aforementioned communities are afraid to engage on policy priorities confronted racial hatred, in part because racial hatred is terrifying, but also because they wrongly believe that in 21st century America, racial hatred can be channeled into political power and even electoral victory. I do acknowledge that, combined with unlimited and anonymous election spending, and, the kind of misinformation and hysteria that corporate media outlets can churn out, it may seem as if hate-based politics are at least a short-term winner. But let’s remember, on the immigration issue, the only real radicals are the consumers of One Percent Media products. The producers of One Percent Media products, including Rupert Murdoch of Fox News, as well as most of the power brokers in the GOP, all support CIR.