Archive | Immigration

How to Turn Good News into Bad News

The percentage of blacks marrying whites has risen by 3 times since 1980. Asians are just as likely to marry whites as they were in 1980 (40%), even though there is a much larger Asian population to choose from, and Hispanics are significantly more likely to marry whites than in 1980 (38% compared to 30%), even though there is a much larger Hispanic population to choose from. The sheer number of interracial marriages has risen 20% since 2000.

This is good news, right? Not the way the Washington Post Associate Press spins it, complete with a commentary by Cornell Prof. Daniel Lichter that is completely at odds with the data, but supports left-wing shibboleths about 9/11 and the recent Arizona illegal immigrant law:

The number of interracial marriages in the U.S. has risen 20 percent since 2000 to about 4.5 million, according to the latest census figures. While still growing, that number is a marked drop-off from the 65 percent increase between 1990 and 2000.

About 8 percent of U.S. marriages are mixed-race, up from 7 percent in 2000.

The latest trend belies notions of the U.S. as a post-racial, assimilated society. Demographers cite a steady flow of recent immigration that has given Hispanics and Asians more ethnically similar partners to choose from while creating some social distance from whites due to cultural and language differences.

White wariness toward a rapidly growing U.S. minority population also may be contributing to racial divisions, experts said.

“Racial boundaries are not going to disappear anytime soon,” said Daniel Lichter, a professor of sociology and public policy at Cornell University. He noted the increase in anti-immigrant sentiment in the U.S. after the Sept. 11, 2001, terror attacks as well as current tensions in Arizona over its new immigration law.

“With a white backlash

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The Bybee Immigration Memo

Yesterday’s Washington Post reported that the Obama Administration’s potential legal challenge to Arizona’s new immigration law is complicated by a 2002 Justice Department memo that suggests states have the authority to enforce federal immigration law.

The document, written in 2002 by the Justice Department’s Office of Legal Counsel, concluded that state police officers have “inherent power” to arrest undocumented immigrants for violating federal law. It was issued by Jay S. Bybee, who also helped write controversial memos from the same era that sanctioned harsh interrogation of terrorism suspects.

The author of the Arizona law — which has drawn strong opposition from top Obama administration officials — has cited the authority granted in the 2002 memo as a basis for the legislation. The Obama administration has not withdrawn the memo, and some backers of the Arizona law said Monday that because it remains in place, a Justice Department lawsuit against Arizona would be awkward at best. . . .

The 2002 opinion, known as the “inherent authority” memo, reversed a 1996 Office of Legal Counsel opinion from the Clinton administration. “This Office’s 1996 advice that federal law precludes state police from arresting aliens on the basis of civil deportability was mistaken,” says the 2002 memo, which was released publicly in redacted form in 2005 after civil rights groups sued to obtain it.

The ACLU has posted a redacted copy of the memo obtained after litigation, and here is the 1996 memo it replaced.

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Bloggers disagree on politics of offshore drilling, and immigration

The latest National Journal poll of political bloggers asked: “With the Gulf of Mexico oil spill, does it make political sense for President Obama to stick to his plans to allow increased oil and gas development along the coasts?” Only 6% of the Left, but 75% of the Right thought that it did still make political sense. I thought it didn’t make political sense, unless the President were ready to make a strong affirmative case: “The president would have to convince the public why some types of new drilling would not pose the same risks that the BP well did.”

The other question asked what is best for the Democratic/Republican parties this year on immigration. Two-thirds of the Left thought Democrats would be best off with a pathway to citizenship, and without any tougher enforcement. Nobody on the Right thought that would be a good idea for Republicans. The Right bloggers split between citizenship + enforcement, enforcement without citizenship, and “stay away from the issue.”

My vote was for the middle choice, at least as the essential first step: “Effectively closing the border has to come first. Offering citizenship but without effectively securing the border would simply repeat the mistake of 1986 and result in even more illegal immigration.”

This poll marked the last of the National Journal’s weekly blogger polls as part of NJ’s “Blogometer.” The National Journal is undergoing major budget cuts, and Blogometer is disappearing, although parts of its will be folded into other National Journal coverage.

Far worse, from a social utility point of view, than the disappearance of the blogger polls is National Journal cutting Stuart Taylor’s weekly column. Taylor is one of the best legal journalists in the United States, and he will continue to write for a variety of other outlets. However, the [...]

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Why the Arizona Law is Much Worse than the Federal Law It is Supposedly Based On

Rich Lowry, Jonah Goldberg, and other defenders of the recent Arizona immigration law often justify it by arguing that it does nothing more than use state law enforcement agencies to enforce a federal law. As Goldberg puts it, “[l]egal immigrants have been required under federal law to carry their papers for generations.” Unfortunately, the state law is indeed much more dangerous than the federal one. And the latter is itself problematic.

I. Why the Arizona Law Poses a Much Greater Risk to Civil Liberties.

There is, however, a big difference between the federal law and the Arizona law: most people rarely if ever encounter federal law enforcement officials except at the border, while the same can’t be said for state and local police. My parents and I were green card holders from 1979 to 1986. As far as I know, they rarely if ever carried proof of legal residency with them except when entering and leaving the country. I suspect that most other legal immigrants behave the same way. Why? Because the chance of running into a federal law enforcement officer in everyday life is infinitesmally small. In practice, the federal law creates little if any risk of either racial profiling or the kind of “papers please” regime that critics of the Arizona law fear.

By contrast, even in my relatively low-crime neighborhood, I see state and local police officers almost every day. If, as the Arizona law allows, these officers can demand papers of anyone “reasonably suspected” of being an illegal immigrant, that will indeed create far worse risks than the federal law. Effectively, it means that anyone who looks Asian or Hispanic or speaks English with an accent is at risk of profiling (see this article for a good short explanation of why). It also means [...]

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Affirmative Action and Racial Profiling Revisited

Back in 2006, I pointed out that most liberals and conservatives take internally contradictory stances on affirmative action and racial profiling:

I have long been fascinated by the fact that most conservatives support racial and ethnic profiling for national security and law enforcement purposes, yet are categorically opposed to the use of racial or ethnic classifications for affirmative action. Most liberals, by contrast, take exactly the opposite view. Both ideologies oppose racial and ethnic classifications as a matter of principle in one area, yet defend them on pragmatic grounds in another….

[Conservatives] say… that ethnic profiling of airline passengers is justified because, on average, a young Middle Eastern Muslim male is more likely to be a terrorist than members of other groups. This, despite the fact that not all (or even most) Middle Eastern Muslims are terrorists, and there are of course some terrorists (Richard Reid, Tim McVeigh, etc.) who belong to other groups…..

Defenders of affirmative action, of course, make a very similar argument. On average, an African-American or Hispanic applicant to college is more likely to be a victim of racism and to suffer from the historical legacy of Jim Crow and slavery than a white applicant is. Thus, it makes sense to give preference to applicants from these groups, despite the fact that some of the beneficiaries will be people who haven’t suffered much from racism, and some of the members of the non-preferred group may themselves be disadvantaged. Defenders of AA also claim that the average black or Hispanic applicant contributes more to campus diversity than the average white one, although there are of course many individual exceptions to this rule.

What I wrote about conservative defenses of ethnic profiling of suspected terrorists applies equally to arguments for its use in ordinary law enforcement.

The [...]

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Peter Spiro on Lieberman’s Citizenship-Stripping Legislation

I am not an expert on the law of citizenship in the United States, but my Opinio Juris co-blogger Peter Spiro is.  Over at OJ he has a short doctrinal analysis of the case law that would likely be relevant to Joe Lieberman’s citizenship-stripping proposal.  It seems to me analytically sound, although I do not hold myself out as an expert in this:

Joe Lieberman has just rolled out a bill (text here) which would strip individuals associated with foreign terrorist groups of their US citizenship.

He’s been playing this as if it were a minor statutory fix.  It’s true, as he’s been stressing, that current law terminates citizenship for “entering, or serving in, the armed forces of a foreign state if (a) such armed forces are engaged in hostilities against the United States, or (b) such persons serves as a commissioned or non-commissioned officer.”  8 U.S.C. 1481.  But that applies only where such service is undertaken “with the intention of relinquishing United States nationality.”

That’s not just some statutory nicety.  The Supreme Court has found it a constitutional necessity. Afroyim v. Rusk (1967) is the lead case, in which the Court found unconstitutional expatriation for the act of voting in a foreign political election.  In Vance v. Terrazas (1968), the Court found that

“we are confident that it would be inconsistent with Afroyim to treat the expatriating acts specified in § 1481(a) as the equivalent of or as conclusive evidence of the indispensable voluntary assent of the citizen. “Of course,” any of the specified acts “may be highly persuasive evidence in the particular case of a purpose to abandon citizenship.”  But the trier of fact must in the end conclude that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to

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Immigration: Costs and Benefits, in Liberty and Otherwise

This is an obvious point, but I think it’s worth mentioning. Immigration has many possible benefits (economic, social, national security, domestic security, and liberty benefits) and many possible costs (economic, social, national security, domestic security, liberty, and congestion costs). These benefits and costs vary by type of immigrant — well-educated vs. uneducated, rich vs. poor, single vs. family, old vs. young, from countries in which there is a substantial amount of militant hostility against the U.S. vs. from other countries, and so on — often in complex ways. Unless one believes there is a categorical moral duty to allow in all immigrants, something that to my knowledge only a few people believe, one must consider all these costs and benefits in deciding on immigration policy. That applies both to the decisions about who may lawfully enter, from where, and on what terms, and to decisions about whether we should allow some who have come or stayed illegally to become legal.

And these benefits and costs also vary by our legal and political system’s reaction to the immigration. For instance, the more medical, educational, and welfare benefits are available to immigrants, especially as soon as they arrive, the higher the costs, and the higher the risk that we will draw people who are less productive and more interested in those benefits (though it’s possible there may also be countervailing benefits as well). The more willing we are to deport noncitizens who commit crime, the lower the likely domestic security costs of immigration (keeping in mind that there might always be perverse effects that one might miss in the initial cost-benefit analysis).

This is particularly true of liberty costs. If letting in immigrants leaves us as free as we ever were, that’s great. But the more it means our liberty must [...]

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What Will Kagan Say about AZ Immigration Law

While controversy rages over Arizona’s recently passed illegal immigration law, the Supreme Court is considering whether to hear a legal challenge to an earlier Arizona immigration measure signed into law by then-Governor Janet Napolitano, and wants to hear the Solicitor General’s views.  As the LA Times reports:

In November, the justices asked Kagan to file a brief giving the administration’s view on whether Arizona’s sanctions on employers who hire illegal workers conflicts with federal immigration law. Months have passed, and no word has come from her office.

The justices have made it clear that they need to hear sometime in May so they can act on the appeal before the court’s term ends in late June.

But the timing of this controversy could not be more awkward for Kagan, since she is also hoping to emerge this month as President Obama’s nominee to replace retiring Supreme Court Justice John Paul Stevens. . . .

She could urge the justices to overturn the Arizona law on the grounds that it conflicts with federal responsibility over immigration, and thereby provoke the wrath of conservatives across the nation. Or, she could say the Arizona measure does not interfere with federal immigration law — a stand that would provoke outrage among Latinos, civil libertarians and the U.S. Chamber of Commerce, which sponsored the appeal to the high court.

As I noted below, the case is U.S. Chamber of Commerce v. Candelaria, and the cert petition is here. [...]

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Matt Welch on the Immigration Law

Matt Welch at Reason writes:

I have sympathy for people who are freaked out by desperate immigrants and ruthless smugglers trampling over their property in southern Arizona, and as I’ve said elsewhere, us pro-immigrant types too easily skate over rule-of-law objections. Federal immigration policy is a failure, and poses real public policy challenges that no amount of righteous indignation and/or handwaving makes disappear.

But anti-illegal immigration crackdowns almost always end up restricting freedom for the rest of us. And giving cops more power is almost always felt more on the receiving end by people–including people just as law-abiding as you and I–who don’t look like the norm. Remember, the stated goal of the new law is “to make attrition through enforcement the public policy of all state and local government agencies in Arizona.” Those who think you can surgically accomplish “attrition” without inflaming and driving out legal residents, too, are kidding themselves.

Glenn Reynolds comments:

This is a good argument for focusing border security at . . . the border, where it doesn’t impact ordinary citizens day-to-day. Shifting from border security to internal security is both an admission of failure at the borders, and a much more far-reaching and intrusive approach.

I would agree.  It’s certainly true that some amount of internal enforcement is necessary, but internal enforcement should not be our primary emphasis.  I also believe that if legal immigration were easier, there would be less incentive for otherwise law-abiding aliens to enter the country illegally.  I believe border security is important, but I also believe the country should be more welcoming to those who wish to come here to work or study. [...]

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Arizona Revises Immigration Law

Well that was quick.  In response to criticism, Arizona has made a few changes to its controversial illegal immigration law.  The LA Times reports:

The initial law, signed by Gov. Jan Brewer last week, required police to determine a person’s immigration status if officers formed a reasonable suspicion about their legality during any “lawful contact.” That led to suggestions by some legal experts that police would be obligated to scrutinize even people who asked for directions. A Phoenix police officer who patrols an area near a school sued, contending that it would require him to ask children he encounters during the day if they are in the country legally.

Lawmakers on Thursday night changed the language to require scrutiny only of people who police stop, detain or arrest. They also changed a section of the bill that barred officers from “solely” using race as grounds for suspecting someone is in the country illegally; opponents had argued that that would allow race to be a factor. The legislators removed the word “solely” to bar race from being used by officers enforcing the law.

“It absolutely clarifies what the intent was,” said Paul Senseman, a spokesman for Brewer, who supported the changes and is expected to sign them into law. “It’s undeniable now that this bill will not lead to racial profiling.”

Opponents of the bill, who to date have filed three federal lawsuits against it and promise more, said the changes would make little difference.

More here.  Wonk Room has also posted an e-mail from bill co-author Kris Kobach about the changes.  Among other thing, it appears these changes were in the works before the NYT published Kobach’s op-ed.   Interesting. [...]

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Libertarian Critiques of AZ Immigration Law

Here are a few libertarian critiques of the Arizona immigration law.

Shikha Dalmia argues that Europe’s stringent immigration laws are no model for the U.S.

these countries are doing a far more effective job of controlling their citizens than their borders–exactly what will happen in the United States if the Arizona law is replicated or federalized. Indeed, given that the overwhelming majority of undocumented workers are here because some American employer or family member wants them to be, there is no way to clamp down on them without imposing a vast, repressive state on American citizens that criminalizes ever-increasing spheres of life. . . .

the claim that the bill doesn’t apply to citizens is disingenuous. Regardless of what the law says, dark-skinned, naturalized citizens with an accent (like me) will inevitably feel the pressure to carry their papers around at all times. That’s because if you can’t produce them on demand, under Arizona law, you would have to be detained while the local police verify your status with immigration authorities–which will put you on the road to Kafkaland, where your freedom could be held hostage by a typographical error. The upshot will be a dual class of citizens on American soil: Paper-carrying and non-paper-carrying.This is very similar to the situation in Italy, where the law does not require citizens to carry their identification papers–but if they don’t have them, they have to face the prospect of being detained and hassled while authorities conduct a background check.

The only way of making the Arizona law less discriminatory will be by making it more draconian by implementing a full-blown National Identification system that covers all Americans, as in France and Belgium . In France random ID checks by police, especially in poorer neighborhoods, are quite common. And in Belgium, on the

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Feds May Sue Arizona Over Immigration

Today’s Washington Post reports that the Justice Department is considering whether to challenge Arizona’s new immigration law.

A key legal ground being considered, officials said, is the doctrine of “preemption” — arguing that the state’s law illegally intrudes on immigration enforcement, which is a federal responsibility.

The White House probably will make the final call, given that the issue is fraught with legal and political implications. Senior administration officials indicated Wednesday that Holder’s remarks about the legislation — he said he is “very concerned” that it could drive a “wedge” between law enforcement and immigrant communities — should be taken very seriously. . . .

Homeland Security Secretary Janet Napolitano indicated in congressional testimony Tuesday that federal reviewers are considering a preemption argument.

“The first thing that needs to be done is for the Justice Department to review whether the law is constitutional under the laws governing the supremacy clause and under the laws governing preemption,” she said, adding: “Is it constitutional or not?”

Meanwhile, there is a cert petition pending in U.S. Chamber of Commerce v. Candelaria, a case involving a preemption challenge to another Arizona immigration law .  This law imposes sanctions on employers who employ illegal aliens or other unauthorized workers, and was signed into law by then-Gov. Janet Napolitano.  The Supreme Court has requested the views of the Solicitor General in this case, so it will be worth watching.  There is also another potentially cert-worthy preemption case out of the 10th Circuit.  While these cases raise different issues, they could shed light on whether the new Arizona law would survive a preemption challenge. [...]

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Kobach on Arizona’s Immigration Law

UMKC law professor Kris Kobach, who helped author Arizona’s controversial immigration law, defends the law in today’s NYT.  According to Professor Kobach, the law “prohibits the harboring of illegal aliens and makes it a state crime for an alien to commit certain federal immigration crimes. It also requires police officers who, in the course of a traffic stop or other law-enforcement action, come to a ‘reasonable suspicion’ that a person is an illegal alien verify the person’s immigration status with the federal government.”

I think Prof. Kobach effectively rebuts several critiques of the law, and suggests why some media and commentator characterizations are inaccurate.  Assuming the law operates as he describes it — and as someone who helped draft it, he should know — it does not appear to me to be quite the civil liberties disaster some claim (and I say that as someone who does not support restrictionist immigration policies).  Yet it does not eliminate all of my concerns.  Police retain substantial discretion to pull over or detain those they seek to question or have legal contact with, so I think concerns about how the law might be used or abused in practice are reasonable.

On preemption, Prof. Kobach has not convinced me that the law will survive legal challenge.  Insofar as stepped up state enforcement of federal immigration laws conflicts with federal enforcement or administration of federal law, or places additional burdens on federal officials (who, for instance, may be required to devote resources to process and expel those arrested by Arizona), I would think it is vulnerable.  This is particularly so because immigration law is not simply concerned with securign the border and keeping out those without a legal right to be in the country.  It is also about providing people with a means [...]

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Is the Arizona Immigration Law Preempted?

There’s no shortage of opinions on the legality of Arizona’s strict new immigration law. Over on the NYT‘s “Room for Debate” blog, Steven Camarota of the Center for Immigration Studies argues the law “is designed to mirror federal immigration law” and thereby avoids any preemption problem.  The ACLU’s Vivek Malhotra, on the other hand, argues the law “represents the most serious incursion by a state into the federal province of immigration regulation and enforcement since California’s Proposition 187 in the 1990s.”  Malhotra also echoes concerns that the law will encourage racial profiling and unconstitutional discrimination against Latinos.

Jack Balkin has an interesting post on the preemption question.  As he notes, Arizona claims that the law is designed to reinforce federal requirements, so the preemption argument will likely turn on whether it can be shown that the law, in practice, inhibits or interferes with federal administration and enforcement of federal immigration law.  This seems right to me.  I am less sure about another point he makes:

There is a much stronger argument that the new Arizona law, while purporting to be helpful, actually sticks a thumb in the eye of the federal government by engaging in draconian measures. The Arizona legislature appears to be saying, in effect: “since you won’t police the borders, we will, and if you don’t like it, pass some new legislation.” If this is the point of the new Arizona law, then the law isn’t really an attempt at cooperation but an attempt at provocation and one-upmanship, and the chances that it is preempted increase.

If I understand him correctly, he is suggesting that the preemption question turns, in part, on whether a state is seeking fill a gap left by federal inaction in the hope at provoking a federal response, such as [...]

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