"The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States."
-- Arizona S.B. 1070, § 1 ("Support Our Law Enforcement and Safe Neighborhoods Act," April 2010)
In September 1957, in a watershed moment in the civil rights movement, Governor Orval Faubus dispatched Arkansas National Guard troops to prevent black students from entering Central High School.
The Eisenhower Administration responded by sending Justice Department lawyers to press for school desegregation, which the NAACP was also seeking in a case that it had brought before the U.S. District Court in Little Rock. The court soon granted the injunction sought by the Justice Department and the NAACP.
A few weeks later, in the face of local resistance edged with hatred and violence, President Eisenhower ordered federal troops to Arkansas to maintain order and safeguard the black school children. The court's preliminary injunction was upheld on appeal, and Central High was eventually desegregated.
The most important legacy of the conflict, however, may have been the images from the streets of Little Rock—of dignified, frightened black students, sturdy federal troops, and a surging, spitting crowd of white protesters.
More than a half-century later, tension between federal and local authorities is again shaping the debate over immigration. An area of law long dominated by the federal government, immigration policymaking and enforcement have witnessed an increasingly vigorous role for state and local authorities in recent years—most prominently in the case of Arizona's strict, new immigration legislation.
It is too early to know whether the heady days of summer 2010 will mark a watershed, like that of Little Rock, in the struggle for immigrant rights, and in the role of the Justice Department in that struggle.
But it is noteworthy that in May, the Justice Department told the U.S. Supreme Court that an earlier, 2007 Arizona law imposing penalties on employers who hire unauthorized immigrants was unconstitutional. The Court agreed to review a challenge to that law and the fate of this statute—referred to by some as the "corporate death penalty" for revoking business licenses of repeated offenders—should be known by June 2011.
Then in July—echoes of the summer of '57—Justice Department lawyers went to U.S. District Court to stop S.B. 1070, Arizona's most recent nativist statute, after the American Civil Liberties Union, NAACP, Mexican-American Legal Defense Fund and others had already commenced litigation.
As summarized by the United States in its brief to the district court, "S.B. 1070 creates new state crimes that penalize an alien's failure to meet federal registration requirements, an alien's unauthorized attempt to solicit work, and the commercial transportation of unlawfully present aliens. And to achieve maximum enforcement of its new immigration policy, S.B. 1070 establishes a new state-wide mandatory immigration status-verification system to be employed whenever practicable by every law enforcement officer who, during the course of a stop, has reasonable suspicion of a person's 'unlawful presence.'"
This last item prompted many to refer to S.B. 1070 as Arizona's "papers, please" law. The district court granted the Justice Department's request for a preliminary injunction against the core provisions of S.B. 1070.
A separate Justice Department investigation of allegations of widespread racial profiling and illegality in the office of Joe Arpaio, Sheriff of Maricopa County, is ongoing.
And, in a further echo of the heartbreaking courage displayed by the young adults who attempted to integrate Central High in '57, the summer of '10 also witnessed widespread protests by undocumented high school and college students, many brought to the United States as infants.
These young adults declared their unauthorized status to political leaders and the media, risking deportation even while insisting on their moral claim to full and equal membership in society. No image from these protests has yet achieved the iconic, conscience-provoking status of the photographs from Little Rock, but the movement is yet young.
Finally, as September began, the U.S. Court of Appeals for the Third Circuit invalidated a Hazelton, Pennsylvania ordinance similar to the Arizona provision now at issue before the Supreme Court, in a sweeping 188-page opinion authored by Chief Judge Ted McKee.
Later that month, Senate Majority Leader Harry Reid announced plans to add the DREAM Act, which would allow many undocumented students to regularize their status, as an amendment to the Department of Defense appropriation bill, a "must-pass" bill.
Amidst all this activity, the most aggressive anti-immigrant state or local measure remains Arizona's S.B. 1070.
Like Orval Faubus before her, Governor Jan Brewer of Arizona has appealed the court order enjoining S.B. 1070. She has sounded "law-and-order" themes (even asserting, and then disavowing the claim, that illegal immigration has left headless corpses scattered along the Arizona side of the border), and insisted on the right of her state to conducts its own affairs.
Like Eisenhower, President Obama has announced he will send troops to Arizona—though Obama's troops will be deployed at the border, and not to defend immigrants from vigilante violence in the streets of Maricopa County.
The struggles today in Arizona, Hazelton, and elsewhere do not occur in a vacuum, of course, but rather play out in the context of the United States' historic immigration law and policy. Nor is the specific dispute in Arizona—the proper role, if any, for state and local actors in making or enforcing immigration law—new. Episodic clashes between federal and local authorities have long characterized the history of American immigration laws.
Early Origins: Acadians and Naturalization
Two founding-era debates illustrate that disagreements about more versus less restrictive immigration and naturalization policies, and about the optimal degree of local autonomy in a system of national immigration rules, date to the very beginnings of the nation.
1. Acadian refugees.
One immigration event that likely shaped views of the founding generation was the Acadian refugee crisis of the late 1750s. French Catholic settlers in the Canadian Maritime Provinces, the Acadians became subjects of Great Britain under the Treaty of Utrecht.
Yet, the Acadians refused to swear allegiance to Britain, and as a result, their formal citizenship status was ambiguous. Many British authorities and American colonists considered the Acadians foreigners—"French" or, at best, "French neutrals."
Weary of Acadian resistance to English rule, in 1755 British troops launched a brutal campaign to deport thousands of Acadians, driving them off their lands, burning their former villages, and removing the Acadians to the American colonies to the south.
The response of the colonies to this early refugee crisis varied, however. Massachusetts and Pennsylvania, for instance, enacted legislation that would allow Acadian children to be forced into indentured servitude. One Acadian petition in Pennsylvania sought mercy, explaining that Acadians would be "the most unhappy People that ever appeared, if, after having lost what God had given us, for the Subsistence of our Families, we see ourselves forced to tear our Children from the Arms of our tender Wives."
Elsewhere, colonial authorities physically detained the Acadians and contemplated expelling them. The British delivered many of the most dangerous Acadians to South Carolina, for instance, where at first local authorities refused to allow the refugees to land.
The Governor suggested re-settling the Acadians on islands off the South Carolina coast, "where little Huts may be put up for them" and cattle and rice supplied, until further instruction from the Crown "or some legal & effectual Method be thought of to get clear of them." Eventually the Governor agreed to send the most dangerous Acadians up the coast to North Carolina and Virginia, and negotiated legislation with the Assembly to indenture some Acadians and release others for resettlement.
An absence of uniform state-level (or sub-federal) responses to the perceived burdens of new immigrants; frustration with the immigration policies of a national sovereign; fear, animus, and mistreatment directed towards immigrant families; and a local desire literally to drive away unwanted newcomers—all of these impulses, evident in Arizona today, would have been familiar to the founding generation and are reflected in the colonial responses to Acadian refugees in the late 1750s.
2. The Meaning of Naturalization.
"Citizenship" was an unsettled notion in the colonial era and did not operate to demarcate rights as sharply as it does in the contemporary period. Under colonial laws, for instance, noncitizens were frequently eligible to vote.
And while colonists generally considered themselves subjects of Britain, "subjectship" law in the colonies diverged from that in Britain. In particular, colonial naturalization policies began to reject concepts of natural and permanent allegiance in favor of volitional and contractual principles of citizenship.
British restraints on naturalization and on immigration to the American colonies is listed as one of the grievances in the Declaration of Independence, where the colonists complained that the King "has endeavoured to prevent the Population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; [and] refusing to pass others to encourage their migration hither . . . ."
The Articles of Confederation allowed each state to legislate its own naturalization statutes, resulting in significant variation. James Madison described this checkerboard of state rules as "a fault in our system, and as laying a foundation for intricate and delicate questions."
By operation of the privileges and immunities clause, however, all states were obligated to respect the rights of the "free inhabitants" of other states. Resentment soon blossomed within restrictionist states opposed to the more generous laws of other states, especially Pennsylvania, which was alleged to have "receive[d] all that would come there . . . at the expense of religion and good morals."
There was little debate at the Constitutional Convention and during the ratification period over the desirability of substituting a single national naturalization rule for the varied state laws. Even Anti-Federalists agreed that the state-level naturalization experience had been disasterous.
This consensus was reflected in the text of the Constitution, which empowers Congress to "establish an uniform Rule of Naturalization . . . throughout the United States." It is also apparent in early Supreme Court decisions, such as Chief Justice Marshall's declaration in 1817, "That the power of naturalization is exclusively in congress does not seem to be, and certainly ought not to be, controverted."
In other words, the Framers deliberately drafted the Constitution to grant the naturalization power to the federal government, based on the widespread view that in this area, disuniform state regulation under the Articles of Confederation had failed.
The Development of the Modern Immigration Regime
Congress launched the beginnings of our modern immigration regime in the post-Civil War period.
The Reconstruction Congresses expressed concern for the mistreatment of immigrants in their debates on the Thirteenth Amendment "involuntary servitude" clause, the Anti-Peonage Act of 1867, the Civil Rights Act of 1870, and the Padrone Act of 1874—particularly Chinese immigrants in the western United States, Mexican immigrants in the southwest, and even Italian children in the eastern cities.
Soon thereafter, however, Congress began to enact laws directing the exclusion at ports of entry of certain undesirable persons, and later, the deportation, or removal from within the country, of others.
Many of these early grounds for federal exclusion or deportation reflected the same concerns as prior state laws with poverty, disease, and criminality. Other federal laws became explicitly racial, initially targeting Chinese, Japanese, and other Asian nationals, but eventually establishing national origins quotas and discriminating against Mexican and other Latino nationals as well.
As Congress moved to legislate immigration laws in the late nineteenth century, legal challenges to the residual state measures, as well as to various procedural and substantive features of the new federal laws, arose. The Supreme Court soon decided in favor of federal power to regulate immigration, held that this power was exclusively federal, and invalidated state laws.