07.11.12

Supreme Court Immigration Ruling in Arizona v. U.S. Got It Backward

The real states’-rights issue in immigration policy is whether local governments can protect their residents from harsh and overreaching federal enforcement, writes Robert Morgenthau.

During the last week of its term, the Supreme Court decided Arizona v. United States, in which it attempted to define the respective powers of the federal government and the states to enforce immigration policy.

The Department of Homeland Security immediately replied that nothing in the Court’s holding would cause it to change its current enforcement policies.

No sooner had the Administration made that announcement than Ariz. Gov. Jan Brewer made her own: By continuing his policy to exercise discretion in immigration enforcement, Brewer said, the President showed “utter disregard for the safety and security of the Arizona people.”

This will be a meaningless debate until someone acknowledges the reality of immigration enforcement in the United States today.

Reading the opinions in Arizona, one might imagine that we have a finicky federal government choosing which immigrants it wishes to deport, while the states are chafing at the bit to provide more muscular enforcement on their own.

Justice Antonin Scalia bought into this scenario in his dissent from the Court’s decision striking down portions of the Arizona law: he wrote that the state was entitled to beef up immigration enforcement if “the citizens of Arizona believe federal priorities are too lax.”

Too lax? To the contrary, the real states’-rights issue in immigration policy is the exact reverse: it’s whether local governments can protect their residents from harsh and overreaching federal enforcement.

In fact, the federal government deports record numbers of immigrants every year.  The number the Court cited in its opinion—387,242—will almost certainly be surpassed this year. If figures from April are a reliable guide, there will be more than 410,000 deportations in 2012.

In Arizona, immigration courts currently have more than 13,000 pending cases. In Phoenix, the average case has been languishing for 542 days without disposition.

With this kind of volume, the machinery of deportation is overwhelmed at every stage, especially our immigration courts. Hundreds of thousands of cases languish nationwide, many going for years without being resolved. That relentless crush of cases is a basic fact the Supreme Court justices failed to acknowledge.

When the system is strained so far beyond capacity, efforts to exercise discretion are doomed to fail. A promise by immigration officials last August to review 300,000 pending cases resulted in closing fewer than 2,700. Meanwhile, the total number of backlogged cases actually grew. In Arizona alone, immigration courts currently have more than 13,000 pending cases, according to statistics compiled by a think tank at Syracuse University. In Phoenix, the average case has been languishing for 542 days without disposition.

Under these circumstances, deputizing local authorities to detain even more immigrants would not be enforcement, nor would it be a vindication of a state’s rights to enforce its borders. It would simply be chaos.

Those who truly seek to vindicate states’ rights in immigration enforcement would be better advised to look at the tortured history of the so-called “Secure Communities” program.

When the program was introduced in 2008, it was advertised as a chance for states and the federal government to cooperate in identifying serious criminals who should be targeted for deportation. States were invited to “partner” with the federal government to identify “criminal aliens” to deport on a priority basis.

To put it simply, the program didn’t work. Federal authorities set up enforcement teams in local jails. But as anyone experienced in law enforcement could have predicted, very many of those detained in local jails were never convicted of a crime.  In New York City, for example, around 40 percent of all arrestees leave the system with no criminal conviction.

The result was that many immigrants who would never face a fine or probation—or even a conviction—found themselves trapped in immigration proceedings. Every year, more and more immigrants were deported; and every year, a smaller percentage of those deported were actual criminals. Most recently, the percentage of Immigration and Customs Enforcement filings charging criminal conduct hit a new low of 14 percent.

Imagine if 86 of every 100 U.S. citizens arrested by the police were eventually found to have committed no crime—we’d demand an overhaul of our entire criminal justice system.

Even those immigrants who weren’t deported were left in a kind of legal limbo.  Their criminal case may have been reduced or dismissed—they may even be actually innocent—but there could was no assurance that the original charges would ever be expunged from their immigration file. An unsubstantiated or wrongful charge may resurface years later to block an immigrant’s application for a green card or citizenship.

The program’s flaw was sending a haystack of fingerprints to immigration officials looking for a needle’s worth of immigration violators. According to one published estimate, for every arrestee alleged to be in violation of immigration laws, 15 more were in the United States legally. Opening that many immigration files on U.S. citizens and other legal residents can only lead to mischief.

In 2011, many jurisdictions, including New York, Massachusetts and Illinois, stated their opposition to Secure Communities, which had the unfortunate consequence of making this “voluntary” program voluntary no longer. ICE reneged on all prior agreements and announced that the program would be implemented on a mandatory basis nationwide.

The Obama Administration recently announced a program to defer enforcement against immigrants who were brought here as children and completed school or military service. But even that requires a showing that the immigrant has a clean criminal record—cold comfort to an immigrant whose file shows an arrest recorded by the Secure Communities program and never expunged, even if it never resulted in a criminal conviction.

The real lesson of Arizona v. United States, then, is that we need a clear-headed understanding of the actual facts of immigration enforcement in the United States, and a sensible and comprehensive federal immigration reform. The first step toward a rational immigration system is to revoke the mandatory status of Secure Communities.

America must remain a nation of reason and compassion, not xenophobia. As the Supreme Court’s majority reminded us in Arizona, “immigration policy shapes the destiny of the Nation