In Defense of SB 1070

By Russell Pearce, Maricopa County GOP Committee Member

In 2010, I introduced SB1070 to the Arizona Senate with two goals: To alleviate the problems that the federal government’s failure to secure our border and enforce our immigration laws inflicted on the citizens of Arizona, and to spark a national conversation about this issue that would eventually lead the federal government to act.

Despite parts of the bill being blocked by activist lower court judges, it has already succeeded on both counts. In 2009, illegal immigrants comprised 9.8 percent of Arizona’s workforce (Pew Hispanic Center) and the Federation for American Immigration Reform found that illegals cost Arizona taxpayers $2.6 billion a year. At the same time, failure to enforce our laws led to rampant crime, Phoenix had the highest kidnapping rate in the country, and dozens of police officers and citizens were killed or maimed by illegals.

The purpose of this bill is not to indiscriminately go through Hispanic neighborhoods and ask everyone to prove they are citizens. Rather, SB1070 is part of Arizona’s attrition through enforcement strategy that began with 2004’s Prop 200 and 2007’s Legal Arizona Workers Act (LAWA), which I also authored.

If you prevent illegal aliens from getting jobs or receiving taxpayer-subsidized benefits, and you routinely enforce the law, illegal aliens will, as Mitt Romney and others have said, “self-deport.” Even without full-implementation, illegal aliens know that they are not welcome in Arizona and the strategy is working.

According to the latest Department of Homeland Security estimates, Arizona’s illegal population fell by 110,000 in 2010, or 23 percent. In contrast, the nationwide illegal population declined by less than 1 percent. Since LAWA’s enactment in 2008, 200,000 illegal aliens, 35 percent of the illegal population, have left the state. The Phoenix Law Enforcement Association released a statement noting, “Since SB1070, Phoenix has experienced a 30-year low crime rate.” Dozens of states have introduced legislation modeled after SB1070 and it has become law in South Carolina, Georgia, and Alabama. Legislators in other states tell me that the inevitable litigation is a major obstacle to getting it passed, but if the Supreme Court upholds SB1070, you can be sure many more states will follow Arizona’s lead.

Ultimately, the federal government must do its job by securing the border, cracking down on employers of those here illegally and vigorously enforcing the laws already on the books in cooperation with local law enforcement. The 360,000 illegal aliens remaining in Arizona are a constant reminder that the problem has not been entirely solved and that the courts need to take the handcuffs off of law enforcement and allow them to enforce SB1070.

Even President Obama has acknowledged that SB1070 was a result of “our failure to act responsibly at the federal level.” The issue before court is not whether the law is effective but whether it is constitutional. I view the issue simply. The 10th Amendment states that all powers not prohibited to the states are reserved to the states, and I cannot see any word of text in the Constitution denying states the right to use their police power to inquire into the status of illegal aliens.

However, I recognize that the courts do not view the issue as straightforward. For that reason, I worked with former Justice Department official and Yale Law Journal editor Kris Kobach to craft the bill in line with recent court precedent on immigration. In 2002, the DOJ issued a memo that states had “inherent power” to enforce federal immigration law. The memo cited numerous cases, such as Gonzales v. Peoria, which said states may arrest individuals when there is “probable cause to believe [they committed] illegal entry.”

While much is made of the fact that SB1070 requires police to look into the immigration status of those it has a “reasonable suspicion” will be here illegally, the Supreme Court ruled in Muehler v. Mena, that police can do so even without reasonable suspicion. Despite the claims of racial profiling, the law specifically bars law enforcement considering “race, color or national origin.”

Last year the Supreme Court upheld LAWA 5-3 in Whiting v. Arizona. While LAWA was not as well known as SB1070, in some ways it is further reaching. SB1070 mirrors federal regulations, while LAWA requires businesses to use E-Verify, which they were not already required to do nationally.

Based on this decision, along with the fact that the Constitution, precedent, and the American people are on our side, I am cautiously optimistic that the court will uphold SB1070.

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