Tuesday, May 11, 2010

Vagueness, Lawsuits, and SB 1070

I was asked whether I thought that bills like Arizona SB 1070 are motivate entirely or even mostly by racism.

The answer is no. I do not think that people who support bills like 1070 are motivated by racism, and, interestingly enough, neither does Attorney General Holder. There are certainly non-racial reasons for wanting to control illegal immigration.

However, sometimes people slide from resentment against illegal immigration to resentment against Hispanics, and people sometimes presume that people are here illegally because they are Hispanic, they speak Spanish, they are lower-class, etc. Resentments about illegal immigration can be a mask for racism, and those who have those resentments sometimes can attach those resentments towards Hispanics as a whole, as opposed to illegal immigrants. The movie 9500 Liberty shows just how these distinctions can end up getting blurred, and when they are blurred, you can get a slide into racism.

Perhaps the most efficient way to fight illegal immigration is to develop some kind of DNA-matched ID card for all citizens to have. You can't get a job if you don't have one. However, a lot of people will think this is too big-brotherish or even mark-of-the-beastish to be acceptable. You can also increase security along the border and prevent entry that way. I would support either measure if done in a feasible way.

When she signed the law Governor Brewer said that racial profiling was against the law and that she would enforce the law in such a way as to be in compliance with the prohibitions against profiling. Is she wrong about that? Should she just not worry about profiling?

My question is whether you have a workable law if you are trying to enforce the law and abide by the profiling laws at the same time.

I would have thought conservatives would object to the law for exactly the reason that they support tort reform. Whether a immigration inquiry is initiated is a matter of somebody's "reasonable suspicion????" The subjectivity of the law's terminology means that all sorts of things have to be settled in court, and that is not where conservatives, last I checked, like to see things settled.

If you are going to use state and local law enforcement to make immigration inquiries, you need a set of procedures as fixed as the procedure whereby you and I are asked for our DL, registration, and proof of insurance when we are pulled over by the police. As it stands, police departments are climbing the walls on this law, because they know they can be sued for profiling, but 1070 also says they can be sued for not enforcing the law.

Something that Vallicella, in his responses to this issue, has not covered is this. There are cases where the police come out but don't ordinarily ask for identification, such as when an officer comes to a house on a complaint about loud music late at night. I would argue, in such a case, that if the people in the house appear to be lower-class Mexicans, if they are playing Spanish-language music, that is not a reason for an officer to initiate an immigration investigation. Vallicella mainly talks about the kinds of police stops that involve the showing of identification in any event, but I wonder what he thinks of these other kinds of cases.

I am also concerned about police enforcing "tickytack" violations such as a cracked windshield or driving less than 10 miles over the speed limit, which they would let slide if the person were white, because of a desire to go on a fishing expedition for illegal immigrants. I can imagine the Mark Fuhrmans on our police forces jumping at the opportunity to do that.

It seems to me that there are two replies which have to be kept separate. One is "this is not profiling" and the other is "what's wrong with profiling?" But if it really isn't profiling, why do people then argue that profiling isn't wrong? You can take this position. You can say that illegal immigration is a huge problem, that most illegals are Mexicans, at least in these parts, and that law-abiding legal aliens and citizens who happen to look like Mexicans are simply going to have to suck it up and deal with a certain amount of profiling if we are to have a society safe from the menace of illegal immigration. But, if you take that position, then you have to say SB 1070 doesn't go far enough, and that Brewer effective emasculated the law by insisting that it be enforced in accordance with laws prohibiting racial profiling. Does anybody want to go there?


M. C. Evers said...

Or you could just do like a couple towns in my area where the tickytacky violations get enforced on EVERYONE. When traveling in the Germantown/Collierville area, I've seen every type of vehicle with every kind of driver pulled over that you could imagine. They have a problem with crime from the nearby city, and the police in the towns nearby have taken the "Broken Windows" approach very seriously: enforce all the small stuff vigorously and the big stuff tends to stay away out of fear for what might happen. It was actually pretty stunning when I first moved to this area and saw two entire suburban towns actually doing the speed limit instead of blasting around like they did everywhere else I've ever lived.

Let me put it this way: I don't think you'd get THAT kind of uniform compliance if it weren't being enforced on everyone. ;-)

Anyway, back to the subject here--if that approach is taken everywhere, where the same level of enforcement is across the board (and the two towns I cite definitely prove it's possible), AND "carding" is used on everybody, then I see no reason why it wouldn't achieve the desired effect of finding those who are in the country illegally...all without a bit of profiling or judgment calls necessary for the cops.

Victor Reppert said...

I have trouble seeing how the "enforce all the tickytack" is going to work for a large city with an overworked police force. But I take it you agree that the law has to have a uniform enforcement procedure written into it.

Dan said...

"Perhaps the most efficient way to fight illegal immigration is to develop some kind of DNA-matched ID card for all citizens to have. You can't get a job if you don't have one. However, a lot of people will think this is too big-brotherish or even mark-of-the-beastish to be acceptable. You can also increase security along the border and prevent entry that way. I would support either measure if done in a feasible way."

Or, um... make it easy, quick and affordable to become a citizen so that people didn't feel the need to come here illegally.

Victor Reppert said...

Well, yes, there is that sort of thing. I think we have to look closely at why it is as difficult as it is for people to come here legally. My daughter tells me that part of the problem is on the Mexican side: apparently you need approval from their government, which prefers light-skinned people of Spanish descent to darker-skinned people with a lot of Native American blood. That's a side of the issue no one wants to look at. We also have to look at any way in which American trade policy might be helping to keep the Mexican economy depressed. American-based companies are exploiting the absence of labor regulations and running sweatshops.

M. C. Evers said...

Actually, while some of the study literature is conflicted about it given the difficulty of isolating particular factors in crime reduction, there is some evidence to suggest that application of the "Broken Windows" theory HAS helped to reduce crime in a number of major cities, to include New York City and Albuquerque (the latter of which focused in particular on road violations). Finding people who are in the country illegally would be an added bonus, but could have an impact in many areas.

Anonymous said...

"Or, um... make it easy, quick and affordable to become a citizen so that people didn't feel the need to come here illegally."

Or we can realize that citizenship isn't some God damned commodity that we just have to enact the right reform and price controls on to ensure that just about anyone who wants it can get it.

Maybe "I want to be a citizen!" isn't sufficient grounds for making someone a citizen. Maybe we should tell millions, perhaps billions, of people: Sorry, but no. Some of you, many of you, are going to be turned down for citizenship.

There's plenty of guys in the US who want to get laid, and many women who aren't helping them out with this. We shouldn't be sitting around, trying to think of how to get more women to loosen up.

Victor Reppert said...

I think we do need to look at why legal immigration is a difficult as it is for Mexicans, and I think we do have to ask ourselves if we are contributing to the root causes of illegal immigration.

If someone wants to come to America, obey the law, work for a living, pay taxes, and provide for their families, there ought to be a way for them to do that legally. I heard of one woman who waited 43 years to become a legal immigrant. something has to be wrong here. "Give me your tired, your poor" should mean something. There is a question as to whether it is unjustly difficult for Mexicans who want to do that to be able to do it. That doesn't mean that we should not control immigration at all.

Anonymous said...

Why Mexican and not everyone in the world? What about Africa, Asia, Siberia? Why the total focus on Mexico?

Secular Outpost said...

Victor Reppert: "If someone wants to come to America, obey the law, work for a living, pay taxes, and provide for their families, there ought to be a way for them to do that legally."

My Reply: I am inclined to say that the conditions you list are necessary but not sufficient. If all of those conditions obtain AND that person's being in the United States doesn't exceed the relevant quota established by law (for the number of naturalizations in a year, the number of green card workers in a year, or similar quota), THEN there ought to be a way for that person to be here legally.

The point is that sovereign nations, including but not limited to the U.S., have the right to set limits on how many "outsiders" may be in the country at a given time.

Victor Reppert said...

I guess what that leaves open is the question of what quotas are rational. Ideally, we shouldn't set quotas, but realistically, we can't deal with people in our country we can't employ. And that, I think, has to be determined, for the most part, by the availability of employment.

Setting quotas based on, say, a desire to retain the current racial balance and voting patterns in our country, as one commenter suggested, would not be acceptable. A re-examination of how these quotas are set has to be a priority in immigration reform.

I have been told that, for people who want to emigrate to America from Mexico, the Mexican government gives preference to lighter-skinned Mexicans of largely Spanish descent, as opposed to darker-skinned Mexicans of largely Indian descent. That would be reprehensible, though not under America's direct control.

Victor Reppert said...

In saying this I am not denying the right of sovereign nations to set rules for immigration. What I am saying, though, is that there can be rational or irrational reasons for restricting immigration. It might also encourage legal, as opposed to illegal, immigration if it were less than hopeless for many people who want to come and work in America to do so legally.

Secular Outpost said...

Hi Victor -- I agree with both of your replies. I would simply add that ability to employ a person is not the only rational factor relevant to any potential quota. Other reasons could certainly include availability of natural resources (such as fresh water), housing, and medical care. Also, impact on traffic congestion would or could be relevant. In short, anything relevant to the impacts of population growth could be relevant.

Victor Reppert said...

Would a "Prohibition argument" be relevant to the amount of immigration we should permit. Here's what I mean. Many people could argue the downside of alcholic beverages, as every woman who has been beaten by a drunken husband can attest, as every mother whose son was killed by a drunk driver can attest. Yet the illegality of alcoholic beverages did more harm than good, and most historians would say we rightly repealed Prohibition. We tried to prohibit something that couldn't rationally be prevented by legal prohibitions.

The restrictiveness of our quotas concerning immigration my be helping to cause a problem with illegal immigration. Prohibition empowered the Capone gang, the attractiveness of illegal immigration empowers the coyotes and drug cartels. Somehow, the situation in which we find ourselves makes breaking the immigration law desirable and attractive.

Jan Brewer likes to remind us all that we are a nation of laws. Of course we are. But the rule of law doesn't even guarantee that all violations of the law are morally impermissible. It could be argued that if someone comes across the border and does so intending to work for a living, pay taxes, and apart from the immigration law, to abide by the law, they may be doing what is at once illegal and morally obligatory. Unless you accept a moral theory that says it is always morally wrong to disobey the law, you have to consider this possibility. That is, we have a prima facie obligation to obey the law, but we also have an obligation to care for our families which may transcend the obligation to obey the law, and in the case of some illegal immigrants, they might have done what is illegal but morally obligatory. (Brewer thinks they're mostly here to run drugs and commit violent crimes, but what is the hard evidence for this claim?)

You know the old Emerson and Thoreau story? Thoreau went to jail for not paying taxes that would support what he took to be the unjust Mexican War. Emerson asked "Henry, what are you doing in there?" Thoreau answered "Waldo, what are you doing out there?"

Secular Outpost said...

Victor asks: "Would a "Prohibition argument" be relevant to the amount of immigration we should permit"?

My Reply: That's an interesting idea, one I had not considered. Yes, it could be relevant. I don't know if the facts support the argument's being *actually* relevant (as opposed to being merely hypothetically relevant).

On the other hand, from a population growth perspective, it seems pretty clear to me that many of the southern border states, especially in the west, cannot sustain the population growth rates they've experienced. (The availability of fresh water alone is one reason why.) Since we don't want to implement abhorrent practices like forced sterilization, quotas on children per family, involuntary abortions, etc., one thing we can do is to try to limit the population growth rate through annual immigration quotas.

Reasonable people may disagree, but I believe the undesirable consequences of population growth outweigh the immigrant's desire to come to the U.S. to get a job. I view illegal immigration as a subset of the larger issue of unsustainable population growth. Neither the U.S. nor any other nation can sustain indefinite, unlimited population growth.

Surely we can agree on that objective (the 'what') even if we may disagree on the means for achieving that objective (the 'how')?

Victor Reppert said...

Given greater global connectedness, and particularly our close proximity and relation to Mexico, I am not sure it make a great deal of difference in the long run whether the population growth occurs here are im Mexico. The repercussions will cross the border, even if the people don't.