A coalition of conservative state legislators made shocking headlines Wednesday as they unveiled a coordinated effort to deny citizenship rights to the children of undocumented immigrants and force a reconsideration of the 14th Amendment. The bracing new campaign follows the shifting geography of the fight over immigration policy. With Congress having failed to pass any immigration reform bill, the debate's center has moved to the state and local level, where anti-immigration laws and ordinances have flourished in the past decade and will likely intensify in the next two years.
Conservative local lawmakers have consistently pointed to Washington's inaction on immigration enforcement when passing new anti-immigrant laws. But ironically, the shift is driven largely by Washington's active devolution of immigration enforcement to state and local law enforcement over the past several years. The Obama administration has continued that trend. The result is that the country is now covered in a lattice work of increasingly hostile localized laws and practices that are fueling an intensifying confrontation between immigrant rights advocates and anti-immigrant policy makers in state and local governments.
A New Line of Attack
Yesterday's coordinated announcement by state legislators, many of whom are affiliated with the group State Legislators for Legal Immigration (SLLI), an arm of the anti-immigrant group FAIR, opens up a new point of conflict at the state level. Legislators in 14 states said they intended to challenge the 14th amendment's guarantee of immediate citizenship for anyone born in the United States. Ultimately, the group hopes that state laws, which would refuse to recognize children of undocumented immigrant as citizens, will push the birthright citizenship issue to the courts.
"All we're asking for is for these bills to prompt the Supreme Court to re-evaluate what we believe is an erroneous interpretation of the 14th Amendment," said Arizona state Rep. John Kavanagh.
The lawmakers and their backers also believe that the law will remove an incentive for immigration, arguing that people come to the United States to birth they're children. The laws, if passed, would create a two tiered system in which the children of undocumented immigrants would be granted different birth certificates.
It's unclear how many states will adopt the birthright citizenship proposals but the announcement has now pushed the once outlandish question of reconsidering the 14th Amendment into the policy arena. And on the same day as the state legislators declaration, Iowa Rep. Steve King dropped his own federal bill to revoke birthright citizenship through statute. He told Politico, "We need to address anchor babies. This isn't what our founding fathers intended."
States vs. the Feds
Alone, the 14th amendment challenges are chilling for immigrant communities. Yet Wednesday's events are only part of a larger and growing constellation of state and local anti-immigration initiatives. The most notable component in that mix is a set of state proposals to replicate Arizona's SB 1070. Legislatures in at least seven states--Georgia, Mississippi, Nebraska, Oklahoma, Pennsylvania, South Carolina and Tennessee-- will likely introduce copycat bills this year.
While the birthright citizenship laws are meant to force a court case over the 14th Amendment, the SB 1070-style laws are pushing courts to weigh where power over immigration enforcement resides.
The Arizona law makes it a crime to be an undocumented immigrant and requires police to check the immigration status of anyone suspected of being an undocumented immigrant. A federal judge stayed the most controversial portions of the law last year. The Justice Department has argued in court that immigration enforcement is the sole responsibility of the federal government and that state attempts to enforce immigration law amount to preemption.
Most legal experts expect SB 1070 to make its way to the Supreme Court. But it could take years to get there and until the Supreme Court rules on the legality of that law, other states can pass their own versions. Advocates and the federal government will be forced to challenge each new state copycat law individually.
But these are just highest profile challenges to federal authority. A November report from the Migration Policy Institute finds that between 2000 and 2009, 107 U.S. towns, cities, or counties passed anti-immigration laws. They included over 50 local laws intended to stop immigrants from getting jobs by targeting employers who hire undocumented workers, 33 English-only ordinances and 17 laws fully prohibiting landlords from renting to undocumented immigrants.
Most of the laws were passed in jurisdictions where immigrant populations grew rapidly in the past decade.
"What anti-immigrant groups are doing is seeing how far they can push the envelope," says Bill Hing, law professor at University of San Francisco. "They know the laws will be challenged in court, but they are trying to see what sticks."
Many of the laws are likely be found unconstitutional but "some, or parts of some, could be upheld by the Supreme Court," says Hing. "I just cant say that all of it will be thrown out."
Democrats' Frankenstein Policies
Supporters of the anti-immigrant laws say they're necessary because the Obama administration and Congress have failed to act on immigration enforcement. But the Obama administration has in fact built up detention and deportation to unprecedented levels, setting consecutive historical highs for official deportations, and it has done so by further beefing up the very local powers its now forced to fight in court.
The administration's unstated logic in perusing a tough-on-enforcement policy is to attract conservatives to support broader reforms. The strategy, which is consistent with Democrats' approach since at least the late 1990s, has not drawn enough supporters to pass either a comprehensive reform bill or a standalone bill like the DREAM Act. It's succeeded only in creating a massive and often out of control deportation dragnet that is woven largely out of programs that devolve power to states and localities.
Increasingly, local cops act as immigration agents. Among the most controversial of these programs is Secure Communities, which empowers local law enforcement to check the immigration status of anyone booked into a jail. The government says the program targets criminals for deportation, but government data obtained by Uncover the Truth, a coalition of immigrant rights groups, show that most of those deported by Secure Communities were convicted of no crime or of a low-level offense like a traffic violation.
The administration has said it plans to implement that program in every jurisdiction in the country by 2013. Though the Department of Homeland Security initially told localities that they would be allowed to opt out of the program, the government recently changed course, indicating that Secure Communities is mandatory.
The policy exposes the Obama Administration's janus-face. As the federal government sues the state of Arizona for preemption it then turns around to fully authorize--and in the case of Secure Communities even require--local governments to enforce immigration laws.
A Localized Immigrant Rights Movement
All of this means immigrant rights advocates are increasingly taking their fight out of the House and Senate and moving it to the White House and to the states, where they will push simultaneously against local immigration laws and against localized federal immigration enforcement.
"Our members, have known that this has to be a local fight for a long time," says Pablo Alvarado, who directs the National Day Laborer's Organizing Project.
NDLON is one of a number of groups organizing county by county to stop Secure Communities. Four counties have voted to opt out of the program thus far. While it's yet unknown if the federal government will force those counties participation, a judge in New York recently ordered Immigration and Customs Enforcement to at least state plainly whether the program was crafted as mandatory. Meanwhile, opt-out campaigns are underway in more jurisdictions across the country.
And in the wake of the DREAM Act's failure, state based advocates are pushing to establish tuition-equity policies that allow undocumented state residents to pay in-state tuition fees. Ten states already have such policies.
National groups that have focused the bulk of their energies in recent years on passing immigration reform in Washington may also be forced to recalibrate. Frank Sharry, who leads America's Voice, one of the country's leading comprehensive immigration reform advocates, told Colorlines before the November elections that if Republicans made significant electoral gains "most of America's Voice's work in the future may be to join with advocates to say this enforcement is wrong-headed. We may need to adjust strategy to the state and local level, with Secure Communities. We'll see how the election plays out but we're thinking we need to throw down on fighting Arizona copycats around the country."
Echoing this, Alvarado said, "What's ahead of us is a campaign around enforcement that we have not seen in decades."
But Alvarado added, "This is also a time when we have to do another kind of work. And that is the work to change hearts and minds. We have to change the way people think about us."