The courts have delivered a mixed bag for immigrants in recent days. The Supreme Court issued a breakthrough decision for immigrants yesterday, restoring some judicial discretion to the deportation process. But in California, a federal appeals court upheld a local statute last week that essentially criminalizes the day labor market. The law at the center of the case, Comite de Jornalers de Redondo Beach v. City of Redondo Beach, makes it "unlawful for any person to stand on a street or highway and solicit, or attempt to solicit, employment, business, or contributions from an occupant of any motor vehicle." It is also illegal to "stop, park or stand a motor vehicle on a street or highway" in order to negotiate work from someone in the car. Advocates for California's roughly 40,000 day laborers challenged the ordinance as an arbitrary encroachment on the workers' First Amendment rights. The court countered that the statute "does not impose limitations based on disagreement with the message's content," and that it is "aimed at uniquely disruptive activities that cause traffic congestion." Got that? It's about traffic, not immigrant workers. The statute parallels many other state and local laws, including Arizona's SB 1070 and similarly noxious initiatives on Long Island, that attempt to criminalize undocumented immigrants and shift the job of immigration enforcement from federal to local hands. Civil liberties groups argue these restrictions violate both constitutional and human rights law. The New York Civil Liberties Union legislative counsel Udi Ofer's testified in 2007 before the U.N. Special Rapporteour on the Human Rights of Migrants:
[C]onstitutional protections, such as those contained in the First Amendment, apply to citizens and non-citizens alike For example, courts have long recognized that individuals have a right to solicit employment in public spaces. Yet for the past year, municipalities have attempted to prohibit immigrant day laborers from congregating along roadways for the purpose of finding employment. Lawmakers appear to care little about the constitutional deficiencies contained in their legislation, and instead turn responsibility over to the courts to determine whether legislation is appropriate, and in the process waste precious government resources when the courts eventually strike down such legislation.
Following the Redondo Beach decision, day labor advocates and local workers vowed to resume the legal battle. "Day laborers of the area have actively participated and organized to have their rights respected," they said in a statement. "Unfortunately, this fight will continue." The legal goosestepping around these ordinances will likely grow more elaborate as rights groups take aim at Arizona's new anti-immigrant legislation. SB 1070's two-pronged assault makes it illegal for an undocumented immigrant to "knowingly apply for work [or] solicit work in a public place." The question is not just free speech but whether the state can enforce immigration laws by regulating public conduct. Steven Schwinn at Constitutional Law Prof Blog notes that on top of the free-speech issue, "the Arizona law sweeps far more broadly than the Redondo Beach ordinance: It applies to any 'public place,' not just streets and sidewalks." But the bigger test--previewed in a dissenting judge's footnote--is the reach of the state in curtailing immigrants' rights: "The First Amendment protects individuals, regardless of their immigration status." That footnote could form the basis of a major constitutional debate on who has the right to stand, speak and struggle to make a living on our streets.