Fall 2010

Line of Fire: SB 1070 Reignites the Debate on Immigration and the Border

My first lesson in immigration policy came at age 7. It was 1949 and the Nogales border was so peaceful that floats with the queens of Cinco de Mayo, from north and south, rolled across “the line” in serene celebrations. Mexicans strolled across la frontera with ease, headed for temporary jobs under the old Bracero Program. University of Arizona agriculture students on field trips observed the arrival of tomatoes, watermelons, and strawberries from Sinaloa and Sonora, with running explanations from their professor, my father. La frontera was so safe a gringo child could wander off in search of raspados and joyful, scary little skeletons. The peace continued through the 1980s.

Today, analyzing immigration policy involves a tangle of law, economics, culture, and history. Illegal immigrants risk death on border footpaths under the unforgiving sun. Criminal gangs, human trafficking, and drug wars plague border towns and cities. Although violence and illegal immigration seem to have eased by some accounts, deep-seated border-related fears generated Arizona’s Senate Bill 1070, passed in April as the nation’s toughest law on illegal immigration. Hours before it took effect on July 29, a U.S. District Court judge’s preliminary injunction blocked enforcement of the most contentious requirements: that police officers verify immigration status if they suspect someone is in the country illegally and that immigrants prove their legal status or face state charges. Critics argue that the provisions target mainly people of Mexican descent, legal or illegal, amounting to racial profiling. In any case, they say, the bill conflicts with the federal government’s preemption of immigration law. In Nogales, Sonora, the shops on Calle Obregon are strangely quiet most days, empty of tourists since smuggling and gangs have dominated the news. Around the world, Americans are being asked to explain SB 1070, one of the most instantly controversial actions by any legislature. The best estimates suggest that more than 10 million illegal immigrants are in the United States, with about 460,000 in Arizona. Yet Washington had put off action on immigration reform for years, until SB 1070 reignited the debate. Polls showed wide support for the bill, and for Gov. Jan Brewer and the Maricopa County Sheriff, Joe Arpaio. In June, a BBC broadcast from the border called the SB 1070 fallout “one of the most polarizing debates in U.S. politics.”

Since 2007, just mentioning the word “amnesty” has blocked any comprehensive immigration-reform legislation. That year, President George W. Bush and other Republicans teamed with Senator Edward Kennedy and other Democrats to form a major immigration bill that failed in the Senate over amnesty. In the following spotlights, experts explore that history and look to the future of the immigration-reform debate.

The future of the immigration-reform debate

Judith Gans
Gabriel J. “Jack” Chin
Oscar Martínez
Jon Kyl ’64 ’66

Judith Gans
Judith Gans has directed the Immigration Policy Program at the UA Udall Center for Studies in Public Policy since 2005. She has lived in Mexico and Brazil, served as a business consultant, and holds master’s degrees from the Harvard John F. Kennedy School of Government and UCLA Anderson School of Management. She studies the fiscal and economic impacts of immigration and teaches about the political and economic effects of U.S. immigration policy.

How can Americans understand what’s beneath the overheated politics of SB 1070?

It is a simple thing to say about illegal immigrants working in the United States, “They broke our laws. They have to go back and get in line.” There is no legal line for them to get into. Meanwhile, immigrants are sometimes demonized in ways that belie the tradeoffs involved in setting policy. And some fringe groups characterize immigrants in ways that verge on being racist.

Immigration policy is deeply political. There’s no economic theory that tells us, “This is the right policy.” There are just competing legitimate interests, not good guys or bad guys. Undocumented immigrants are painted as flaunting U.S. laws, but there are large demographic and economic trends pulling them in. There were high levels of immigration 100 years ago when we shifted from an agrarian society to manufacturing. Immigrants were a larger percent of the population then. Where many were Protestants from Northern Europe, cities now were filled with immigrants from Italy and elsewhere in Southern and Eastern Europe. These immigrants were much like Hispanics today, Roman Catholic, darker skinned, poorer, less educated, without high levels of job skills — fomenting nativist rhetoric about these “others” as our own middle class became poorer. The parallels between today and 100 years ago should be no surprise. Americans are vulnerable and unsettled, and they are asking, “Who are these strangers? What does it mean to be an American?” Having people enter the country illegally doesn’t sit well with people. But the reason they are entering illegally is that the legal system is obsolete. It was put in place 50 years ago and is at odds with current economic realities. We need to reform the system, but debates about “amnesty” have gotten in the way of reforming the system. We must figure out what to do with the 10-to-12 million undocumented workers, and we are engaged in a political debate about what is the appropriate penalty for being in the country illegally. Until we resolve this question, overall reform won’t happen and no solution will stand if we don’t bring these people into some kind of legal status.

People’s concerns about Hispanic immigrants integrating into society are unfounded. Someone with a name like Alito, a son of an Italian immigrant, now is just another white guy on the Supreme Court — Associate Justice Samuel A. Alito Jr. We can integrate all kinds of people. Our notions of race are constructed. Just as somebody named Alito was once just a minority outsider, a Hispanic immigrant today can become, perhaps a few decades from now, the equivalent to a Justice Alito. We are a resilient people, and we shouldn’t worry about assimilating new arrivals.

Senate Bill 1070 has been compared to Birmingham in 1963 when police dogs and fire hoses were turned on civilrights protesters. That crossed a line, but it got people to pay attention and made possible the coalitions behind new civil-rights laws. SB 1070 may spur us to finally deal with immigration reform and fix a broken system that doesn’t fit today’s economy.

Immigration is not a simple story to tell. People who are concerned that immigrants are bankrupting state coffers are just wrong on the facts. While low-skilled workers generally consume more in social services than they directly pay in taxes, this is a function of the jobs they do and the wages they earn, not their immigration status. If we eliminated all low-skilled immigrant workers, legal and illegal, and replaced them with native-born workers, the fiscal burdens would still be there. Also, thinking about the fiscal impacts of low-skilled workers, it is important to remember that, because there are relatively few native-born low-skilled workers, these immigrants are filling gaps in the labor force. This means that they are making possible economic activity that otherwise wouldn’t happen. This economic activity has fiscal consequences, too. The intuition is that we are better able to meet our fiscal burdens when the economy is healthy. So, when considering the fiscal impacts of immigrants, it is important to think about the whole picture. We need to be careful about harming our own economy by eliminating this workforce.

Hostility toward “new” immigrants rises when the economy is struggling. There’s no way to sugarcoat it — our concerns focus on racial groups. In the past, it was Germans, Southern and Eastern Europeans, Jews, Catholics, and Asians. Now it’s Mexicans. Older immigrant groups themselves sometimes make the same argument: past immigration was good, new immigration is different, and the newest group won’t assimilate. But that’s been false for almost 200 years. New immigrants may be different, but not in the sense that assimilation is impossible. It always happens.


Gabriel J. “Jack” Chin
Jack Chin has been the Chester H. Smith Professor of Law at the UA James E. Rogers College of Law since 2004. He also is a professor of public administration and policy in the UA School of Government and Public Policy, and has been an Arizona special assistant attorney general since 2006. He attended Michigan Law School and Yale Law School. His research ranks him on lists of the most-cited law professors in the United States, and one of his articles was recently cited in Padilla v. Kentucky, a Supreme Court decision holding that lawyers must advise clients in criminal cases about the possibility of deportation.

What about the constitutionality of SB 1070?

SB 1070 makes a dozen or more important changes in the law. Certain parts of the bill, wise or unwise, are quite constitutional and consistent with federal practice. I would be very surprised if the whole thing is knocked out by legal challenges. SB 1070 allows an officer to stop someone and investigate their immigration status with “reasonable suspicion” that the person is in the United States illegally. (This provision was temporarily blocked by the court on July 29.) That’s tricky. If you are stopped for DUI, the police may ask about your immigration status — that’s legal. And if they suspect you are undocumented, they can call the Border Patrol. But if, for example, they find no basis to arrest you for DUI, they can’t continue to hold you to fish around for other crimes you might be guilty of. That’s not legal.

The constitutionality of many of the provisions creating Arizona crimes based on federal immigration status is doubtful. The federal Immigration and Nationality Act provides that undocumented people can be charged with crimes, prosecuted civilly, or granted various forms of relief, including potential legalization under some circumstances, based on the discretion of federal administrators. Because SB 1070 allows Arizona officials to charge undocumented people with crimes, when the federal authorities might have exercised their discretion under the Act to do something else, SB 1070 interferes with federal authority.

Of course, in theory we could secure the border now — we could mine it, irradiate it, kill off anything that moved. But that’s not America. My historical perspective tells me we are not going to do that. So if that’s not the case, the sooner we come to immigration reform, the better. The core problem is, comprehensive immigration reform today just sets up the next round of amnesty. We want the labor and migrants want the work. There was amnesty in 1986, which legalized about 2 million immigrants, and we may have another in 2011 or 2012, helped along by the firestorm unleashed by SB 1070. I hope it will include a long-term solution, which probably should include a temporary agricultural-worker program.

So what about the costs of SB 1070?

It seems to reflect a strong desire for a free lunch, to get more enforcement without paying for it. But there always is a trade-off. We could provide more immigration enforcement (without SB 1070), but we’d have to raise taxes to hire more police and stop providing other services to afford it. We could tell the police that we now have this big priority, immigration, and they should stop answering 911 calls or stop investigating rapes, robberies, and murders to focus on immigration, and to stop investigating organized smuggling of guns, money, drugs, and humans to focus on low-level immigration violations. The question becomes, how much are people willing to have their taxes raised to pay for immigration enforcement? I suspect the answer is not much. SB 1070 is symbolic politics — it’s about the latest wave of immigrants from Mexico since 1986, not about immigration reform or law enforcement.

The law is a wonderful thing, but I teach my students that it is not magic. If we could get rid of something just by passing a law against it, we would have no drugs or crime. I also tell them that there are many laws on the books that are just fine to enforce, but only in egregious cases. It may not be unjust that every kid who downloaded a music file or smoked a joint is not in prison. In any event, the people of Arizona and the United States appear quite unwilling to pay for that high level of enforcement.


Oscar Martínez
Oscar Martínez’ family migrated from Chihuahua, Mexico, in the 1950s. He grew up in El Paso and across the border in Ciudad Juárez. He is a UA Regents’ Professor of history and member of the UA Center for Latin American Studies. He advises students to apply historical methods to SB 1070: “Americans are conditioned to think of immigration from Mexico in a very negative way. We have to realize that migration between these two countries is a product of economic integration between them, for more than a century.”

To Mexicans and Mexican Americans, is SB 1070 essentially a racist measure?

Yes, it is seen as racist, and that is because of the long history of racism, of discrimination against people from Mexico in this region based on prejudicial attitudes toward dark-skinned people. In the Southwest, Mexicans have long been the primary victims of prejudice and discrimination, and that includes Arizona. Racial profiling is very much a part of that legacy and that is a major concern about SB 1070.

This history is very familiar to people, and it is not unrealistic at all for people to feel that this prejudice exists. Mexican Americans would expect many people in the mainstream population, especially people in positions of authority, to practice discrimination and engage in abusive behavior. There’s a long history of police brutality against Mexican Americans. Fears about SB 1070 are based on real history and on people’s own experience of prejudice and discrimination before SB 1070. In the minds of many, the law will legitimize racial profiling and give those who are inclined to practice discrimination a legal basis for doing it.

So for Hispanics, this bill has historical roots in racism?

Racism is a part of it. If you look at all the U.S. laws that have been passed, many have been antiimmigrant, going back many years. Because of the historical fear and alarm and hysteria present in American society, immigrants have been an easy target. There’s a long history of seeing immigrants as scapegoats, and in Arizona it seemed logical to zero-in on Mexicans. Exploiting the fear of Mexican immigration is a ploy that has been used politically for generations.

How would you characterize the relationship between economics and immigration at the Arizona-Mexico border?

Migration is a product of the fusion of two economies. It’s really one economy divided by a border nearly 2,000 miles long. Mexicans who need employment will migrate to the United States, and the United States needs them — otherwise they wouldn’t come.

It’s like what happened when 6-to-8 million people left Appalachia because of depressed conditions. They migrated to cities in the Midwest and to other parts of the country. That same phenomenon is happening with Mexico. People need to understand that Arizona was part of Mexico, and before that, Spain, as Nuevo España, for three centuries. Migration to Arizona is natural. These migrants come without documents seeking jobs, and do not have the same opportunity to come legally as tens of millions came legally to the United States in the 19th and early 20th centuries when Europe had a bulge in population and needed a safety valve. The United States provided that.

With Mexicans, we have shut the door to ordinary poor, working people who don’t have a lot of education or job skills. If the United States had not eliminated the guestworker law called the Bracero Program, there would have been a legal avenue for temporary workers. Nor have we given opportunity to working people to enter in other ways, legally. So they come illegally. It sounds good when people say, “My ancestors came here legally. Why don’t these people get in line?” There is no line.

SB 1070, speaking of illegal immigrants in Arizona, says the bill seeks “attrition through enforcement” of federal immigration laws.

You have some partisan people who have control of the legislature and are using the immigration issue for political purposes. Some of them want to drive out as many Hispanics as possible, legal and illegal, and are using immigration as an avenue to accomplish that. There is a lot of hysteria and racism about this — fear of immigrants, fear of having the Mexican population growing in the United States and changing its culture. That’s an unfounded fear; there’s no evidence for that.

Dealing with immigration has gotten tougher, very political. With our concern about border security and drugs, we are trying to seal the border, and that is totally bogus.

Will the pendulum swing back toward a more open border?

I am an optimist. Things will swing back in the future because this stage is totally unsustainable. It is doing harm to everybody. We can’t continue with the level of hostility that we see in Arizona. Now the ball is in the court of the U.S. government.


Jon Kyl ’64 ’66
Jon Kyl is in the top tier of U.S. policymakers after 18 years in the U.S. Senate. He is minority whip, the No. 2 post among Senate Republicans. Kyl graduated Phi Beta Kappa from the UA in 1964 and from the law school in 1966. He met his future wife, Caryll Collins, a UA nursing student, at a church event near the campus in his freshman year. He was on the Time magazine 2010 Time 100 list — along with Barack Obama, Bill Clinton, Sarah Palin, and Glen Beck — of the world’s most influential people. Time called him “a principled conservative who knows what is attainable.” In 2007, he worked with Senator Ted Kennedy and others for a bipartisan immigration compromise but it failed due to opposition to any kind of amnesty for illegal immigrants.

Is SB 1070 a signal to Washington to take action on the border?

SB 1070 is a cry for help. Washington does not realize how bad the situation is on the border. They think that since they have spent all this money, that’s all they need to do. They need to come out to Arizona and see for themselves. You don’t need comprehensive immigration reform to secure the border, but you do need to secure the border to get immigration reform. That’s just the political reality.

What’s the next step?

What we need is a temporary-worker program, once the border is secure, as a good adjunct to the other efforts to control the border. In Washington, the conversation about immigration is never very constructive. Since 2007, we’ve known that we must make a lot more progress on border security before we can move ahead on immigration reform. The people have a point. They are saying, “We will believe that you mean it when you have done it.” We are getting closer, and that’s welcome, but there’s much more to be done.

Why has SB 1070 caused such a storm?

Overall, I think the political impact of SB 1070 has been beneficial toward moving us forward on solutions. But to the detriment of our state of Arizona, it has made an impression that we are a bigoted state that intends to do ill toward Mexican immigrants. That’s not the case. For political reasons some people mischaracterize our actions.

Could SB 1070 lead to racial profiling as its critics charge?

The bill explicitly tells the police, “no racial profiling.” Police do what they are told. There’s very little evidence that we’ll see that based on training and the fact that the police can get into trouble if they racially profile. In the past, when police stopped people, if there was evidence someone was not in the country legally, it was handled appropriately. There is no incentive for police to do racial profiling now.

Is immigration the hardest policy problem in your 18 years in the Senate?

It’s one of the hardest. If it weren’t so emotional, so political, the solving of the political problem wouldn’t be that hard. When we went to the UA in Tucson, it was natural to have immigrants everywhere — shopping, in restaurants, and as our fraternity brothers. It was part of the Tucson environment. For 400 years, people here didn’t think twice about relations between Mexicans and non- Mexicans. Arizonans are good people. We can handle this, if the federal government does its part.


Border Timeline

  • 1920s A flood of immigrants, and a U.S. reaction against them. The Quota Act of 1924 sets limits by national origin.
  • 1930s The “Mexican Repatriation” sends off Mexicans and Mexican Americans.
  • 1940s The Bracero Program in 1942 lets employers bring workers from Mexico to fill labor contracts and return home.
  • 1960s The end of the Bracero Program in 1964 leads to large-scale illegal immigration.
  • 1980s The Immigration Reform and Control Act in 1986 gives permanent residence visas to about 2 million immigrants from Mexico.
  • 2000-07 President George W. Bush seeks a bipartisan immigration-reform bill. The effort dies over allowing any new legal status for illegal workers.
  • 2006 The McCain-Kennedy immigration bill passes the Senate. It fails in the House.
  • 2007 President Bush and Arizona Senator Jon Kyl work up a bill with a path to citizenship for some migrants. It fails over amnesty.
  • 2008 States begin taking steps to curb illegal immigration.
  • 2010 In April, Arizona passes SB 1070. A week later, an amendment bans racial profiling. On July 28, a judge blocks enforcement of the bill’s most volatile provisions. On July 29, the bill becomes law.