In 2012, at the request of the Obama administration and U.S. Justice Department, the U.S. Supreme Court threw out the provision that made it a crime to enter Arizona illegally from a foreign country, the heart of Senate Bill 1070. The ramifications for states’ rights and sovereignty are clear.
By Andrew Thomas | June 25, 2013
The U.S. Senate’s current debate of federal immigration reform reminds Americans of just how long the problem of broken borders has bedeviled the nation. For the last two decades, the people of America’s four Mexican border states increasingly have lost confidence in the federal government and its ability and willingness to secure their southern border. As a result, they have tried to fix the problem themselves through voter initiatives and referenda.
These attempts, ultimately, have not proved a lasting success. Their failure is for the same reason they were necessary in the first place: obstruction by the federal government—in this case, through federal court decrees.
Two rulings this month by federal courts in Washington and Phoenix have driven home this reality. The U.S. Supreme Court, by a 7 to 2 vote, struck down Arizona’s voter-approved requirement of proof of citizenship in order to vote in state elections. A federal district judge in Phoenix found the office of Maricopa County Sheriff Joe Arpaio engaged in racial profiling. As a result, counsel for Sheriff Arpaio has informed the court and the public that he and his office are “out of the federal immigration-control business.” While both Arizona and Arpaio can take steps to achieve compliance and, eventually, the good graces of federal authorities, that will entail years of additional litigation and is fraught with political uncertainty. These rulings, furthermore, undermine the efforts of other state legislatures grappling with illegal immigration.
The experience in Arizona replicated almost exactly what happened in California twenty years before. That is no coincidence, for the political left followed in Arizona the same playbook they used to defeat immigration-control measures in the Golden State. In both cases, the people of these states voted for reforms that were beaten back by a coalition of liberal forces determined to keep the borders porous.
In 1994, California voters took up Proposition 187. The measure decried the “personal injury and damage” and “economic hardship” caused by the “criminal conduct of illegal aliens in this state,” and offered solutions that provided much of the example and raw material for Arizona’s reform efforts years later. Prop 187 required police officers to investigate a detainee’s immigration status and notify the detainee and federal immigration agents of alien status if determined. The measure repealed local government policies that blocked enforcement of this requirement. It denied public assistance to all persons not verified by state or local government agencies as U.S. citizens or legal immigrants.
A partisan and ideological divide soon emerged. By basing his campaign largely on his support of Prop 187, Republican Governor Pete Wilson was able to overcome a more than 20-point deficit to overtake and defeat his Democratic opponent, Kathleen Brown. President Bill Clinton, on the other hand, came out strongly against the referendum. Large public protests took shape, including a mass boycott of high schools and a march of more than 70,000 people in downtown Los Angeles. The Mexican flag often was carried ostentatiously in these demonstrations. On November 8, 1994, California voters overwhelmingly approved the proposition with 59 percent of the vote.
But as with immigration and other social reforms passed by the voters of California and elsewhere, the people did not have the last word. Efforts to forestall enforcement of the new law were fierce and well organized. Governments outside California threatened to boycott the state. Mexican President Carlos Salinas de Gortari publicly denounced the law. The day after the voters passed Prop 187, the ACLU and other groups filed lawsuits. Two days later, a federal judge blocked enforcement of the new law. It would remain in limbo for years.
In 1997, a second federal judge struck down Prop 187 as unconstitutional. Governor Wilson appealed to the U.S. Court of Appeals for the Ninth Circuit. His successor, newly elected Democratic Governor Gray Davis, dropped the appeal. The reform died. On August 4, 1999, the Los Angeles Times reported then-California Assembly Speaker Antonio Villaraigosa crediting Salinas’ successor, President Ernesto Zedillo, as having had a “great impact in defeating Proposition 187.”
By then few remembered the history and reasons for all these contortions. In the end, the will of the people had been invalidated.
Prop 187 had direct ramifications for California’s neighbor to the east, Arizona. The measure forced politicians in Washington, including Clinton, to deal with California’s dissatisfaction over federal immigration policies. That led to Operation Gatekeeper, a federal immigration enforcement plan which garrisoned the San Diego Sector of the Border Patrol with substantially increased enforcement resources and a sturdy fence. A year before, Operation Hold the Line in the El Paso, Texas, Sector had achieved similar success. The result was a funnel effect that pushed illegal immigrants into Arizona.
As Arizona concurrently absorbed immigrants from Mexico and disaffected residents of California, the state’s turbulent politics showed the effects of these twin developments. The immigration crisis grew in the one state with a large, remaining, essentially undefended border with Mexico. Arizona became the principal corridor of human smuggling for the nation.
By 2004, a band of Arizonans, simple citizens mostly, stepped forward to challenge the situation. They came up with the Protect Arizona Now Initiative, later designated by the state as Proposition 200. A genuinely populist, home-spun uprising, the Protect Arizona Now movement sought reforms similar to those passed a decade before in California. The measure required individuals to produce proof of citizenship before they could register to vote or receive public benefits and made it a misdemeanor for public officials to fail to report persons who sought such benefits but could not produce the required documentation.
Almost no political leaders dared support Protect Arizona Now. Opposition to Protect Arizona Now was bipartisan and overwhelming. Both U.S. Senators, Republicans John McCain and Senator Jon Kyl, came out against it. McCain and then-Democratic Governor Janet Napolitano literally marched together in solidarity along a downtown Phoenix street to oppose the measure. The Arizona Chamber of Commerce, AFL-CIO, Phoenix firefighters union, Hispanic state legislators and activists, and all major newspapers in the state joined the outcry against the initiative. Unlike Prop 187, which enjoyed the active support of Governor Wilson, anti-illegal-immigration activists in Arizona could summon little money or succor from political leaders.
Faced with this onslaught, and heavily outspent by opponents with attack TV ads, Protect Arizona Now seemingly had little chance. Opponents amassed millions of dollars to defeat it. Yet in November 2004, 56 percent of Arizonans approved Proposition 200. Exit polls found that 47 percent of Hispanic voters supported the initiative.
As with Prop 187 in California, Protect Arizona Now was destined for oblivion. The drama in California presaged almost precisely Arizona’s experience in 2010: a popular measure dealing with illegal immigration sidelined by a loud coalition of liberal interest groups, a Democratic administration (this time in Washington, led by President Barack Obama), complaints from the Mexican government, and the federal courts, which delivered the coup de grace.
Federal lawsuits challenged the initiative’s voter-identification requirements. In October 2006, right before the November statewide election that year, the Ninth Circuit Court of Appeals halted Arizona from requiring voter documentation at the polls.
So it was for other immigration crackdowns approved by the Arizona legislature or the voters. In 2012, at the request of the Obama administration and U.S. Justice Department, the U.S. Supreme Court threw out the provision that made it a crime to enter Arizona illegally from a foreign country, the heart of Senate Bill 1070. The Ninth Circuit tossed a law that prohibited illegal immigrants from congregating and soliciting work outside home-improvement stores. Then, this month, the dominoes fell quickly. Rulings from the U.S. Supreme Court and U.S. District Court nullified Protect Arizona Now’s voter-identification requirements and Sheriff Arpaio’s attempts to enforce immigration laws.
The ramifications for states’ rights and sovereignty are clear. States that have enacted voter ID requirements or otherwise tried to deal with illegal immigration now must contend with these adverse rulings as well. Others considering such moves will be forced to reconsider. It remains to be seen when and if Congress finally deals with an issue that the federal government has prevented the states from solving, and how the states respond to these latest setbacks through new efforts to defend their rightful sovereignty.
Andrew Thomas is a graduate of the University of Missouri and Harvard Law School. Twice elected as Maricopa County Attorney, the district attorney for greater Phoenix, Arizona, Thomas served a county of four million residents and ran one of the largest prosecutor’s offices in the nation. He established a national reputation for fighting violent crime, identity theft, drug abuse and illegal immigration. He is the author of four books, including The People v. Harvard Law: How America’s Oldest Law School Turned Its Back on Free Speech. Mr. Thomas is also a contributor to SFPPR News & Analysis.