Arizona’s Anti-Immigrant Law SB1070

April 23 was the anniversary of Governor Jan Brewer’s signing of SB1070. Just a few weeks before that, on April 11, the U.S. 9^th Circuit Court of Appeals upheld District Court Judge Susan Bolton’s July 2010 injunction against the enforcement of certain provisions of SB1070, including those that require immigrants to carry their papers at all times and police officers to check suspects’ immigration status. The 9^th Circuit concluded that there was sufficient evidence that these parts of the law infringe on federal jurisdiction. Pearce has vowed to appeal the decision to the U.S. Supreme Court.⁴ Despite the injunction, the law’s impact has been widely felt, across the state and nationally. Other states are preparing similar legislation, and immigrants with legal papers and without are living in fear.

Pentecostal observers say that the Montenegros’ Apostolic Assembly denomination, with its large Hispanic membership, includes individuals of questionable documentation, who would pay a heavy price for their spiritual brother’s support of SB 1070.⁵

Yet, like his Tea Party colleagues, Montenegro has been an active sponsor of a series of recently rejected anti-immigration bills, which critics say were even more draconian than SB1070. He was also the prime sponsor of Arizona’s latest anti-abortion law, signed by Brewer in March, which makes it a crime to get an abortion because of the race or gender of the fetus and requires minority women to sign a document explaining their reasons for seeking the procedure.⁶

When I interviewed him in September regarding his support for SB1070, Montenegro declined to discuss how he was able to reconcile his votes with his religious beliefs and his church. “We don’t mix religion and politics,” he told me. “If you’re working on a story about what the religious experience has to do with [the law], I don’t think that’s fair.” He added that he and his family came to the United States legally, and that people who accuse him of being hypocritical are stereotyping him. At a Tea Party rally Montenegro summed up his position: “The fact that I can speak in Spanish doesn’t automatically make me a protax, open border liberal hopelessly addicted to big government spending. So today we send government a message: don’t mess with my liberties, don’t mess with my faith, and don’t mess with my wallet.”⁷

That a Spanish-speaking immigrant and Latino church leader is a major supporter of SB1070 says much about the disparate elements that came together to pass the most restrictive anti-immigration law in the country—an unhealthy brew of Wall Street greed, political opportunism, and nativist fears.

The Mexican Financial Crisis, U.S. Banks, and the Private Prison Industry

Today’s debates about U.S. immigration policy have roots in the December 1994 Mexican financial panic. On the heels of NAFTA, Mexico emerged nearly bankrupt because of bond debt to Wall Street banks. The peso was devalued by forty percent. The U.S. government pushed the International Monetary Fund to give Mexico money so it could put together a package to pay its creditors, most of which were the Wall Street banks.⁸ The IMF then contracted out the bailout loan to the U.S. Treasury.⁹ Mark Fineman of the Los Angeles Times reported, “Three weeks after it started receiving one of the biggest and most controversial credit packages in U.S. history, the Mexican government has spent a fifth of the $20 billion in promised U.S. loans to pay off American insurance companies, mutual fund investors, Wall Street brokerage houses, Mexican banks and the richest of Mexico’s rich.”¹⁰

To meet its crushing debt to Wall Street, the Mexican government increased interest rates at the behest of the U.S. Treasury. The rates on business and farm loans rose from an average of eleven percent to 56 percent. Those on credit-card debt went from seven percent to 61 percent. The rates on home loans increased from an average of five percent to 75 percent.¹¹

The impact on Mexican citizens was devastating. Thousands of farms and businesses, both large and small, went bankrupt. Jobs disappeared, and people could no longer support their families. The economic hardships prompted a wave of mass migration, as millions of men, women, and children crossed Mexico’s northern border seeking work.

The Private Prison Companies Get Involved

In December 2006, more than a thousand men and women were arrested and detained in Immigration and Customs Enforcement (ICE) raids at meat-packing plants across the U.S. Instead of being charged with misdemeanors such as the misuse of a social security number—the U.S. practice since 1995—they were charged with crimes that carry lengthy prison sentences, such as falsifying documents or identity theft. The charges marked a significant shift in the enforcement of federal immigration policy.¹²

As Peter Cervantes-Gautschi, the executive director of Enlace, a group that helps low-wage workers develop and strengthen their organizations, wrote in an analysis for the Americas Program think tank, the shift spelled good news for the for-profit prison industry. Although the United States has the highest incarceration rate in the world, across the country, crime rates were down.¹³ Private prison corporations, no longer able to keep their jails filled, had lost contracts and shuttered doors.¹⁴ Now, however, wrote Cervantes-Gautschi,

A report by the Corrections Corporation of America, the country’s largest for-profit prison company, noted that “[e]xecutives believe immigrant detention is their next big market.” CCA, said the report, was expecting to bring in “a significant portion of our revenues” from Immigration and Customs Enforcement (ICE).¹⁶ Many of the same banking institutions that profited from the Mexican financial crisis of the 1990s, such as JP Morgan and the Bank of America, are now investing heavily in the private prison industry, enabling them once again to profit from those who lost their jobs and businesses following the Mexico bailout.¹⁷

Kris Kobach, Crusading Attorney

In 2002, Kris Kobach was a 33-year-old advisor to U.S. Attorney General John Ashcroft, working in the Department of Justice’s Office of Legal Counsel. There, he was “intimately involved,” as he says, in writing a memo arguing that local and state police have the power to arrest undocumented immigrants for civil violations of immigration law.¹⁸ Kobach’s memo directly contradicted opinions issued by his office in 1989 and 1996, which stated that only federal agents have that power, and his memo never became official policy.

In 2003, he left the department, and a year later, he was hired as senior counsel to the Federation for American Immigration Reform (FAIR), an organization that works to curtail immigration, which the Southern Poverty Law Center (SPLC) has identified as a White nationalist hate group.¹⁹ In its report, SPLC cites John Tanton, FAIR’s founder, who wrote that a clear “European-American majority” is needed to protect American culture.²⁰

Although Kobach’s Department of Justice memo never went anywhere, Kobach uses it to justify the authority of local law enforcement in immigration matters. In a May 18, 2010, article, theWashington Post wrote that “ [Kobach] … has cited the authority granted in the 2002 memo as a basis for the legislation.”²¹—and he is behind the anti-immigration laws that have started popping up in towns across the country, writing them and then defending them in court.

He has had limited success, however, in selling his arguments to judges. In 2007, he was brought in to defend a law in Hazleton, Pennsylvania, in a case that heated up the national anti-immigrant climate. Hazleton’s municipal ordinance made it a crime for landlords to rent to undocumented immigrants and required all tenants to register with the city. As Hazleton Mayor Lou Barletta said at the time, Kobach intended to make the law “legally bulletproof.”²² Nevertheless, in 2007, a federal district court judge struck it down as unconstitutional. In September 2010, the 3^rd Circuit Court of Appeals agreed with the lower court’s ruling that immigration law falls under the jurisdiction of the federal government. Hazleton has appealed the decision to the U.S. Supreme Court, which has remanded it back to the Third Circuit. “Mr. Kobach’s experiments in pushing immigration enforcement to states and municipalities has real-world consequences, fueling xenophobia and pitting neighbor against neighbor,” said the Legal Director of the Pennsylvania American Civil Liberties Union (ACLU), Witold Walczak, who argued the case.²³

Last fall, Kobach was elected Kansas secretary of state, running on a pledge to end immigrant voter fraud—even though he provided no credible evidence that this problem exists. He cited one case, in which he claimed that someone who had died in 1996 had voted in August 2010. However, theWichita Eagle found the “dead” man outside his house raking leaves.²⁴

Russell Pearce, FAIR, and ALEC

Both nativists and the private prison industry were at the center of developing and passing SB1070;Arizona’s Senator Pearce has ties to both.

His connections to FAIR go back to at least 2004, when he was the co-chairman of the campaign for Proposition 200, a voter-approved law that cut off benefits to undocumented immigrants.²⁵ The ballot initiative marked FAIR’s first foray into Arizona politics, for which the organization spent $500,000 in lobbying the public.²⁶

A report by the Corrections Corporation of America, the country’s largest for-profit prison company, noted, “Executives believe immigrant detention is their next big market.”

Certainly, FAIR and Kobach fingerprints are all over SB1070, with its references to pressuring undocumented immigrants to “self deport” and to “attrition through enforcement,” which come directly from FAIR’s talking points.²⁷ Dan Pochoda, the legal director of the Arizona American Civil Liberties Union (ACLU), points out that the enforcement strategy, also embraced by the Arizona Tea Party, is at the heart of all of Kobach’s cases.²⁸ Still, Kobach’s previous ordinances had “only fiddled around” with giving local police enforcement responsibility, says SPLC Director of Research Heidi Beirich. “SB 1070 was a big innovation,” she notes.²⁹

Kobach did not return phone calls for requests for an interview.

Pearce also has close connections to the prison industry, due to his membership in the American Legislative Enterprise Council (ALEC), a nonprofit, private membership organization that develops “model legislation” dedicated to advancing “free markets” and “limited government” for state lawmakers.³⁰ In addition to the lawmakers, ALEC’s membership includes 200 corporations, who pay tens of thousands of dollars for the privilege of gaining access to the state officials. Both CCA and Geo Group, another large private prison company, are corporate members of ALEC.³¹

Pearce is an ALEC lawmaker-member and serves on the council’s Public Safety and Elections Task Force—which also includes CCA representatives. Pearce admits that he submitted a draft to the task force of the bill that would become SB1070 in December 2009.³²  Kobach says he helped draft a version of the law, likely the version that Pearce brought to ALEC.³³

A month after Pearce presented the draft to the task force, the January-February edition of Inside ALEC published a list of the model legislation the council had approved at its December States and Nation Policy Summit, including this:

In March, Pearce introduced a bill into the Arizona state legislature that was practically identical to ALEC’s model legislation.

Arizona State Senator Russell Pearce (with folder

and without cowboy hat)

For its part, CCA donated to the campaigns of thirty of the bill’s 36 cosponsors and hired a lobbyist to work the state capitol on the bill’s behalf. Two of Governor Brewer’s top advisors, Spokesman Paul Senseman and Campaign Manager Chuck Coughlin, are former lobbyists for the private prison industry.³⁵

Tapping the Tea Party

Even though the forces that came together to pass SB1070, such as the private prison industry and ALEC, are powerful, neither group alone would have achieved such success. The prison industry’s lobbying efforts have been behind the scenes—in fact, it denies any lobbying at all. Obtaining grassroots support was crucial, and FAIR focused on generating it, tapping into Arizona’s motivated Tea Party movement.

FAIR set the stage for SB1070 with the Proposition 200 campaign. Frank Sharry, the executive director of America’s Voice, which lobbies for comprehensive immigration reform, said thelegislation restricting public benefits to those who could not prove their immigration status, was in fact symbolic. “Few undocumented workers collect benefits, but [FAIR’s] strategy was to mobilize their base,” Sharry said. “In some ways [it became] the predecessor to the Tea Party. [FAIR] used online organizing to build a pretty formal cadre of activists around the country…. The anti-immigration movement has been able to stir up the Republican base so that the Republicans are scared of them in low-turnout elections.”³⁶

FAIR invested a half-million dollars in the campaign, hiring signature gatherers and mobilizing support with a misinformation strategy, claiming (falsely) that undocumented immigrants cost the state $1.3 billion a year. To produce this number, a FAIR study included $810 million the state spends on educating the children of immigrants who are US citizens.³⁷ The referendum campaign fanned the flames of anti-immigrant fears. “The Minutemen vigilantes have diverted the attention of the public and the media while their counterparts, sporting suits and ties in the state capitol, promote racist laws,” said Luis Herrera, an organizer with the St. Peter’s Housing Committee in San Francisco. “A war against immigrants and people of color has been declared in Arizona.”³⁸

Margot Vernes, a community activist and volunteer with Corazon del Tucson, said that the White progressive community was reticent about the racist motivations of White nationalist movement, which helped the anti-immigrant movement in the long-term, setting the stage for the SB 1070 showdown.³⁹

Proposition 200 passed with 56 percent of the vote.⁴⁰

For the next few years, as Prop. 200 faced legal challenges, FAIR’s legal arm, the Immigration Reform Law Institute, headed by Kobach, spent its time and resources trying to institute anti-immigration policies at the local level. After losing several high profile cases such as the one in Hazleton, in 2009, Kobach and FAIR turned their attention back to Arizona. Governor Janet Napolitano had just been appointed Secretary of Homeland Security. Lieutenant Governor Jan Brewer, a staunch, conservative supportive of anti-immigration legislation, became the new governor, and Pearce moved into the powerful position of head of the Senate Appropriations Committee.⁴¹

The anti-immigration movement has been able to stir up the Republican base so that the Republicans are scared of them in low-turnout elections.

“Given all that, with the local ordinances held up in the courts, I suspect they figured, ‘Hey we’ve got strong support in Arizona,’” Sharry said. “Prop. 200 sowed the seed for SB1070, because FAIR had gotten to know Pearce at the time. They had gotten the Republican establishment behind them.” He continued,

As evidence of the anti-immigrant groups’ success, Sharry points to the reversal of U.S. Senator John McCain (R-AZ) on immigration reform. In 2005, McCain worked with Senator Ted Kennedy (D-MA) on a bipartisan plan that would have increased border security but also granted amnesty to illegal workers already in the country. By 2008, in response to anti-immigration activism, he changed his position and endorsed strict border crackdowns and blamed undocumented residents for “home invasions and murders.”⁴³

“This is less a policy issue than it is a front on the culture war and in the partisan political war,” Sharry said.

The Tea Party, emerging in the wake of this anti-immigration fervor, embraced FAIR’s talking points and ran with them. Politicians like Montenegro curried favor with this motivated constituency.

Tea party support has not waned. In February, the Tea Party Patriots, a national umbrella group, held a so-called policy summit in Phoenix. In its invitation, the group wrote, “It will also be our opportunity to support the citizens of Arizona in their current political battles that carry so many national implications.”⁴⁴

The Prison Industry Cleans Up

Even now, before SB1070 has gone into effect, there are twelve for-profit, private prison and detention facilities in the state of Arizona. CCA holds the federal contract to house detainees in Arizona who are suspected of violating immigration laws. When someone is arrested on suspicion of being in the country illegally, the state or county must notify ICE, which then has 48 hours to determine the detainee’s status. Each day that CCA holds a detainee in one of its facilities means an additional payment, whether from the state, county, or federal government. According to Cervantes-Gautschi, CCA currently bills the Department of Homeland Security $11 million per month.“[CCA’s] stated goal is to make as much money as they can off detained immigrants,” he says.⁴⁵

SB1070 would expand the private prison industry’s market, effectively turning state and local police officers into its very own taxpayer-funded sales team. The new trespassing offences created by the law carry a maximum of twenty days in jail for a first offense and thirty days for a second offense. (The main difference between the ALEC model legislation and the bill presented to Arizona legislators was that in the ALEC version, there was no maximum limit on how long a person could be detained.) Private prisons would profit handsomely from these sentencing guidelines—for which the state would be required to pick up the tab.

Although Pearce asserts that the law will reduce prison overcrowding, even the Arizona legislature’s own fiscal analysis predicts that it will bring greater numbers of prisoners into the system, increasing costs. The analysts admit, however, that they cannot put a dollar figure on the cost increase, because no one knows how many people will be rounded up.⁴⁶

In absence of any credible figures, many are turning to a study done by the Yuma County Sheriff’s Department in 2006, in response to a bill similar to SB1070 that would have rounded up suspected undocumented immigrants, but that never made it into law. Yuma is one of Arizona’s fifteen counties, with a population of about 200,000. Sheriff Ralph E. Ogden estimated that county law-enforcement agencies would have to spend an addition $775,880 to $1,163,820 under the law. Increased processing expenses and jail costs would be between $21,195,600 and $96,086,720.⁴⁷

With these kinds of increased costs to the taxpayer, SB1070 clearly conflicts with the Tea Party’s demand for smaller government. Yet, the majority of the Tea Party candidates don’t seem to recognize this. The alliance between CCA and FAIR typifies the ironies surrounding SB1070, since FAIR reaches out to Tea Party activists who profess to want to stop illegal immigration; while the CCA’s financial survival is directly linked to its continuation.

“They (Tea Party supporters) don’t know because they don’t listen to us,” Cervantes-Gautschi said. “The argument that this eases overcrowding of prisons is utter nonsense.”⁴⁸

Beirich called the attempts of Tea Party politicians like Montenegro to reconcile their support of SB 1070 with smaller government “absolute balderdash.” “They haven’t been forced to reconcile it,” she said. “To their base, they play up this red-meat, culture war issue. To the press, they insist they’re just for limited government. They’re supposed to be for liberty, less government intrusion, but what they’re endorsing is the ultimate intrusion.”⁴⁹

Second Thoughts

During the past few months, various segments of the electorate have expressed concern that perhaps things have gone too far. The economic boycott, first started by the National Council of La Raza, and widely endorsed by other civil liberties organizations after the passage of SB1070, has already cost the state dearly. In the first six months after the bill’s signing, the convention industry lost $141 million.⁵⁰

A war against immigrants and people of color has been declared in Arizona.

“On top of that, there is all the negative publicity,” said Democratic State Senator Steve Gallardo, who is pushing for a repeal of the law. “It’s going to take years to get out from under this black cloud.” Because Arizona is developing a reputation for racial discrimination, he said, “We’re being called the Mississippi of the Southwest.”⁵¹

Some business leaders are pushing back. In March, nearly sixty CEOs signed a letter to legislators opposing Arizona’s most recent round of anti-immigration legislation. The letter referred to the “unintended consequences” of the state’s “going it alone” on the immigration issue. “It’s all based on their own self interests,” Pochoda said. “They lost money. But we’ll take it.”

Nonetheless, FAIR and the private prison industry continue their lobbying efforts. After a lull in support, the dual forces behind SB 1070 are now seeing some success spreading similar legislation to other states. In May, Georgia’s governor signed into law a bill based on the ALEC model legislation.⁵² In June, Alabama passed an even more stringent anti-immigration law, which Kobach proudly takes credit for writing.⁵³ Missouri and Pennsylvania are debating similar legislation.⁵⁴

Meanwhile, the FAIR-linked group State Legislators for Legal Immigration (SLLI), led by Pennsylvania Republican State Representative Daryl Metcalfe, has been developing model legislation for state challenges to the notion of birthright citizenship, which would prevent children of undocumented immigrants—so-called anchor babies—from automatically receiving U.S. citizenship. The goal is to trigger a U.S. Supreme Court review of the 14^th Amendment. In March, though, Arizona rejected its anti-birthright-citizenship bill.

Additionally, in May, the U.S. Supreme Court ruled in a different Arizona case that states do have the right in some instances to set immigration law, raising questions about judicial review of SB 1070.⁵⁵ Opponents had argued that such state and local anti-immigration legislation interfered with the jurisdiction of federal government to enforce immigration.⁵⁶

Meanwhile, Pearce still claims that the law’s economic impact on the state has been positive. His website says,

His assertions are dubious—the statistics do not take into account the impact of the 2008 collapse of the U.S. economy and the skyrocketing unemployment rate on reducing overall immigration.  The number of undocumented residents nationally has declined eight percent since 1997, according to a Pew Hispanic Center study.⁵⁸

The Sanctuary Movement

In the early 1980s, the Southside Presbyterian Church in Tucson, Arizona, initiated the sanctuary movement, when it sheltered thousands of people fleeing Central American death squads. The Rev. John Fife hung banners outside the church: “This is a Sanctuary for the Oppressed of Central America,” and “Immigration: Do not Profane the Sanctuary of God.”⁵⁹

The sanctuary movement was based on the religious concept that we are to show our neighbors mercy: “Which now of these three, thinkest thou, was neighbor unto him that fell among the thieves? And he said, He that showed mercy on him. Then said Jesus unto him, Go, and do thou likewise” (Luke 10:36-37). SB1070 would target such sanctuaries by prohibiting “any municipal, county or state policy from hampering the ability of any government agency to comply with federal immigration law.”

Misericordia. Perhaps it’s a forgotten concept.