Immigration Law likely to be challenged in court

Current Affairs

Politics Daily has a pretty decent writeup of the legal challenges that we’re all expecting to be brought very soon against the new anti-immigrant law just passed here in Arizona:

“As an expression of popular anger in Arizona, the state’s dramatic new anti-immigration law is loud and clear. As an expression of constitutionally permissible law, it is thoroughly flawed. If you are into that sort of thing, better enjoy the white-hot coverage of the immigration ‘showdown’ now because in a few weeks, or maybe even a few days, the effect of the state law is likely to be stayed by the federal courts. And then the debate will go back to where it belongs, onto Capitol Hill and away from the courts, at least for the time being.

Probably selected at random through an internal docket lottery, or perhaps discretely assigned to the chief trial judge, the first federal jurist to review the law will be quickly asked to balance the alleged harm (to the illegal immigrants) of allowing its enforcement pending judicial review against the purported harm (to the rest of the population) of stopping its enforcement immediately until a final court ruling is issued. The judge also will have to evaluate right from the start whether the Arizona legislation is likely to pass constitutional muster when its terms are evaluated on their merits following trial.

Under the new law, Arizona police now are required to stop and question anyone they ‘reasonably suspect’ of being undocumented. It will be a crime to hire ‘day laborers’ or to transport them to their jobs. Government agencies that hinder enforcement of immigration laws will be made more vulnerable to civil litigation by state residents. The illegal immigrants who are picked up will be fined. Legal immigrants and/or native-born Americans who are caught up in the sweep, on the other hand, will be unable to successfully sue for the deprivation of their rights because of the governmental immunity that attaches to most police functions.”

More here.

At the Cathedral in Phoenix, we’re joining with pretty much every other religious group in the State in objecting to the law as it has been enacted. As I read it, the SB1070 seems overly broad, and parts of the law could very well be used to impound the cars of parishioners driving fellow parishioners to worship – at least until the immigration status of everyone in the car has been determined. Is such a thing likely? Probably not. But you have to live here in Phoenix, in Maricopa County to understand what it’s like to have America’s Meanest Sheriff as your law enforcement. There’s not a whole lot of trust in the latino community as far as law enforcement goes. The point was driven home to me when kids from our youth group matter-of-factly decided that the “whitest” person should be the car driver when a group were starting to head home after an event.

Is there a problem with people here in Arizona illegally? Yes. There are representatives of the drug cartels functioning in the schools (according to members of the youth group at the Cathedral). There are record numbers of home invasions and kidnapping, human smuggling and gang violence – almost all latino on latino crimes. There are some very bad people coming across the border. There are also many people desperate to find work coming across as well, because the crushing poverty in their home communities makes impossible to feed and care for their families.

When I was down on the border last year, we learned from the Emergency Room doctors that they’re seeing an epidemic of pregnant Latinas with broken ankles. The women are jumping down from the fence in a desperate attempt to have their child on the American side of the border thereby granting the child US citizenship. The problem is that the Border Patrol has to deal with each one of the relatively harmless women with the same sorts of protocols that they have to use to approach people who are heavily armed and bringing drugs over the same fence. For every woman they have to arrest, an untold number of drug mules evades capture. There’s some thought that it’s the Cartels that are putting the women up to their jumping.

In a perfect world, there would be sufficient economic activity in southern Mexico and in Central America that people – who don’t want to leave their homes in the first place – would be able to find work and remain in their native communities. That’s the reason many of us here in Arizona are involved with Cafe Justica (a Fair Trade coffee cooperative that is bringing economic viability to villages in Chiapas Mexico) and other such business cooperatives.

Barring that though, many voices in Arizona are asking for either a legal guest worker program for people we need to hire to come legally into the country and then safely return home. And for those who have already been brought here (sometimes by American recruiters) and don’t have documentation – which means they can no longer safely return – a legal path to citizenship. (Right now the only path is to try to find their way back home and apply. But given the danger on the border and in Northern Mexico, along with the lack of available visas, that’s not an option – especially for families who have been here 20 or 30 years now.)

In the meantime, I guess we’re going to wait for the court challenges to begin. Hopefully the law will be stayed before it goes into effect. And perhaps the attention it has attracted will get enough people to recognize the problems we have here to start to respond to repeated requests sooner than later.

The Author

Episcopal bishop, dad, astronomer, erstwhile dancer...


  1. Paul Martin says

    Thank you for this, Nick. This is the most lucid and informative commentary I have seen yet on this issue.

  2. Martial Artist says

    As a Catholic Christian who is fundamentally what Hayek called an “Old Whig” (a la Edmund Burke), I believe that the includes a combination of strict enforcement of immigration plus a reasonably generous guest worker program.
    Having said that, one needs to come to terms with the reality that illegal immigration is just that illegal, and failure to enforce just laws leads to an increasing disregard for the Rule of Law. I would assert, based on some limited experience of Mexico, that the underlying problem, which Dean Knisely clearly identifies, is that our southern neighbor, in some significant degree similarly to Greece, is subject to the observation I saw posted elsewhere on another blog, that the elimination of corruption in Mexico would result in the destruction of the entire culture. I suspect that the situation in Mexico is, in fact, more dire than that in Greece, because of what has been termed the conquistador economy of Mexico.
    Unfortunately, it would appear that Mexico has a long way to go before it will appear to be anything approaching what it would in a perfect world. A great deal of praying would seem to be in order.
    Pax et bonum,
    Keith Toepfer

  3. Kristin McCartor says

    Dean Knisely,
    This is one of the better commentaries on the new law.
    We often overlook the fact that the crimes committed by the undocumented are most often targeting the undocumented. I fear we will have to wait until Anglo children are kidnapped off our streets and tortured to extort money from their parents before we fully realize the heinous nature of the abuse currently suffered by the undocumented.
    We have to acknowledge that our undocumented brothers and sisters are effectively indentured servants, working for slave wages, in horrible conditions. Patting ourselves on the back because ‘at least they’re not starving back home’ really isn’t an answer.
    I applaud both your call for supporting fair trade enterprises across the border, as well as a decent guest worker program, and opening more paths to citizenship. I also believe we have to step up border enforcement or we are guilty of encouraging people to risk dying in the desert.

  4. Thanks for this quite helpful discussion, Nick. I plan to preach on the theopolitics of immigration this weekend, and I will likely share some of your anecdotes to help those of us at a distance from this reality to appreciate the complexity of the problem. I really appreciate your stand.

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