On the Eve of SB-1070’s Enactment: What Can President Obama Do?

obamaOur guest blogger is Pablo Alvarado, Executive Director of the National Day Laborer Organizing Network.

Yesterday, for the first time, President Obama addressed the imminent passage of SB-1070, an Arizona immigration bill he said would “undermine basic notions of fairness” and “trust between police and their communities.” In his brief statement he acknowledged that the federal government’s “failure to act responsibly” has led to the “irresponsibility of others.” Nonetheless, Arizona Gov. Jan Brewer (R) irresponsibly signed the bill into law Friday afternoon. While Congress must work to enact just immigration reform, the President must react swiftly to address the crisis in Arizona. The nation is now looking to the President to demonstrate leadership and moral courage to follow his own advice and stop the implementation of this likely unconstitutional and “fundamentally racist” law. How can he do it? He can start by reasserting the federal government’s exclusive authority to enforce immigration laws.

According to the constitution, immigration law has been the exclusive purview of the federal government. Local and state governments are precluded from enforcing it or promulgating their own laws. The inception of the widely acknowledged failed 287(g) program in 1996 which allows local law enforcement to enforce immigration law after entering into an agreement with the federal government, marked a sweeping reinterpretation of the constitution. In effect, the 287(g) program and others like it have created a balkanized system that increases and sometimes sanctions racial profiling, diverts resources from law enforcement, and creates a growing distrust between local police and immigrant communities. SB-1070 is now the culmination of the federal government’s outsourcing of its immigration enforcement authority to state and local police. Arizona is proof that police and ICE partnerships are not only costly and dangerous, they can also be used as a stepping stone towards more radical solutions. The President has the power to immediately halt them.

The President can also direct the Department of Justice to rescind the 2002 Bush era “inherent authority memo” and return to the federal government’s prior conclusion that state and local police are preempted from enforcing non-criminal provisions of immigration laws. The principle behind it is this: the federal government has exclusive authority to regulate immigration (like their exclusive authority to have a military) and that authority can’t be transferred to state and local governments. There’s good reason for this: a uniform immigration policy is fundamental in maintaining national order.

Finally, President Obama could decide that Immigration and Customs Enforcement (ICE) will simply not participate in SB-1070’s implementation. Arizona cannot implement SB-1070 without the federal government’s cooperation and willingness to detain and deport those who are the potential victims of unjust arrests and profiling. By refusing to help Arizona enforce a bill that will surely be deemed unconstitutional and unjust, the President would send a clear message that the federal government will have no part in enforcing laws that undermine “basic notions of fairness.”

There are moments in history when the country must stand together to uphold its most cherished values and protect its proud tradition as a nation of immigrants in order to perfect the Union. In these moments, we must honor those who fought so hard for the freedom and equality we all must defend. Recent events in Arizona require such a moment.