Immigration Law Debate Gets Preview in U.S. Senate

On its way to the U.S. Supreme Court this week, Arizona’s controversial immigration law came under attack Tuesday (April 24) from two of its loudest critics, U.S. Senate Democrats Charles Schumer of New York and Richard Durbin of Illinois. In a Senate subcommittee hearing, Schumer and Durbin said, as other opponents have, that the legislation encourages racial profiling and undermines community policing.

“I believe it is simply too damaging to our economy and too dangerous to our democracy to have 50 different states doing 50 different things with regard to immigration policy,” Schumer said. Todd Landfried, the executive director of Arizona Employers for Immigration Reform, testified that the law had accomplished, “nothing good, unless you want to make brown people move.”

Russell Pearce, former Arizona Senate president and the law’s author, defended the law.  “I’m getting disappointed that we’re the bad guys for enforcing the laws,” said Pearce, who noted that he was proud of the law and stands behind it.

Pearce, who has since been recalled and now runs an anti-illegal immigration activist group, was the only witness to testify before the committee in favor of the bill. Governor Jan Brewer was invited, but declined. Neither of the state’s two U.S. senators attended the hearing.

While the event was derided as political theater by Republican leaders as well as Pearce, a Republican, it offered a preview of the arguments in Wednesday’s landmark case before the country’s highest court to determine whether Arizona went too far in enforcing federal immigration law. Pearce and his supporters say they are enforcing these laws and doing what the federal government refuses to do.

The ruling could have an impact on similar laws passed in Alabama, South Carolina, Indiana, Utah and Georgia in the year after the Arizona law’s enactment. More states have expressed interest in following Arizona’s lead, but are waiting on the court’s action to move forward. So far, the provision in these laws requiring police to check the immigration status of anyone they suspect might be in the country illegally, the most controversial provision of the state laws, has been enjoined by federal judges.

States on both sides have joined the case. Eleven states signed on to a friend-of-the-court brief arguing that even though Arizona may not agree with federal immigration enforcement policies, “it cannot operate its own unilateral removal policy outside of any federal oversight.” Sixteen other states filed a friend-of-the-court brief urging the court to offer a narrow ruling in the case, so that even if they strike down Arizona’s law, other laws could remain in place.

If the court follows its usual voting pattern, according to Steven D. Schwinn, a professor at the John Marshall Law School who wrote an analysis of the case for the American Bar Association, chances are good that Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor will support the Obama administration in opposing the law. Chief Justice John Roberts and Justice Anthony Kennedy are more likely to join them than Justices Clarence Thomas, Antonin Scalia, or Samuel Alito, Schwinn wrote.

Since Justice Elena Kagan  is recused from the case, if a 4-4 verdict is reached, the decision of the lower court stands. That would mean that the law would be held unconstitutional.

Congress too could weigh in if the Court decides to uphold the law. Schumer has drafted a bill he said he plans to introduce if the Court rules in favor of Arizona, to specifically “reiterate that Congress does not intend for states to enact their own immigration enforcement schemes.”