SB 1070: 5 Year Anniversary

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It’s been five years since Governor Jan Brewer signed SB 1070 into law. Arizona State University law professor Paul Bender and Daniel Gonzalez, Arizona Republic reporter talk about the law and how it has impacted Arizona.

Jose Cardenas: Thank you for joining us. Five years ago, former governor Jan Brewer signed SB 1070 in law, which allowed law enforcement agencies to either detain or arrest a person under "reasonable suspicion" that they were in the United States illegally. It was known as the "show me your papers" provision. However, much of the law has been overturned by the federal courts. Joining me to talk about the law and what has happened in Arizona five years later is ASU law professor Paul bender. And Daniel Gonzalez, reporter for the "Arizona Republic." Thank you for joining us on "Horizonte." Daniel, it doesn't seem like it was just five years ago. It seems like almost a decade ago, but things were pretty intense, protests, demonstrations, nobody knew if governor Brewer was going to sign the law. Paint the picture for us as to what was happening in Arizona at that time.

Daniel Gonzalez: You're right, Jose. This was an incredible, extraordinary time in Arizona's history and it was many years in the making. Remember back in -- going back all of the way to 2001, 2002, incrementally, the state started to pass these laws that were tougher and tougher immigration enforcement laws. At the time Arizona had one of the largest undocumented populations proportionately of any state in the United States. And there was a lot of things happening at the border. A lot of smuggling going on, a lot of demographic changes taking place, and the legislature had decided, immigration reform had failed and -- in Congress, and there was a feeling in the legislature that they were going to take matters into their own hands and try to pass this very, very tough immigration enforcement law.

Jose Cardenas: And this is something that Russell Pearce, principal architect tried several times before and never happened and he broke through the log jam.

Daniel Gonzalez: He broke through the log jam and there was a lot of suspense of whether governor Brewer was going to sign it. She was getting ready to run for re-election -- she signed the law and propelled her into the forefront --

Jose Cardenas: A lot of people thought she wasn't going to get out of the primary.

Daniel Gonzalez: Right.

Jose Cardenas: She did that, and was very successful in the general.

Daniel Gonzalez: What was really extraordinary, what it unleashed in the Latino community, especially the undocumented community here in Arizona. There was just real palpable fear that people would be walking down the street, and I remember hearing this over and over again, from immigrants I interviewed, a fear that they would be walking down the street, driving around, looking for anyone Hispanic for the express purpose of pulling people over to find illegal immigrants to deport. It unleashed this huge panic. I remember in the weeks that followed, governor Brewer signed SB 1070 and you could drive through the neighborhoods on the west side, yard sales everywhere, dozens of yard sales, of people just preparing to leave the state because they were so terrified, and, remember, this was also a time when the great recession was really in full gear, and lots of people were losing their jobs, and jobs were scarce. They were being laid off and people were feeling I can't -- my work situation is unsteady, and there is also a chance that I could be rounded up tomorrow and deported and not make it home to my children. One of the things that we did, that -- in the weeks that after Governor Brewer signed it, we went out and found a family that actually was moving. They had lived here I think for 15 years and moved all of the way to Pennsylvania. We drove with them that entire route. I remember they were so scared of being pulled over. They left in June. They were so scared of being pulled over. They left, waited all day and waited until nightfall left at night thinking that that would give them the safest chance to get out of the state and make it to Pennsylvania.

Jose Cardenas: Paul, a lot of anxiety in the population at large about what the law could do. One of the provisions, show me your papers, but there was also concern about the provision that made it a crime to transport someone who was in the country without proper documentation. And even some of the defenders of the law hesitated to say what that might mean. There was a lot of ambiguity, whether it could mean -- example where it was used, child of an undocumented immigrant, going to jail for driving grandma to church.

Paul Bender: Yeah, I think what happened was the supreme court put a brake on what the legislature of Arizona was trying to do. Legislature of Arizona, and a lot of people in Arizona, thought the Federal Government is not doing its job enforcing immigration law so we are going to take over doing it. Supreme Court held in the case that that was unconstitutional, that immigration was something that was a federal responsibility and states could not take it on their own to enforce immigration law. If they did that, they would have to do it under the supervision of the Federal Government. A number of provisions of SB 1070, clearly unconstitutional, because it was the states saying we are going to enforce immigration law, and people thought why shouldn't the states be able to do that since they're enforcing federal law? Court answered no, means the Federal Government has to decide how it should be enforced. A lot of discretion. Who to enforce it against, what penalties to provide, and that all has to be under the direction of the Federal Government. Most of 1070, and I think the wave of anti-immigrant legislation stopped for a while because the supreme court said you can't do that. One provision is left in place was the show me your papers provision. Opinion is not all-together clear, but it basically says you can ask people who you arrest for non-immigration crime or stopped for non-immigration crime, to show that they're legally in the country. You can ask that, but you can't detain them because you think they're illegal. You can ask them for information and you can tell the Federal Government that you have this person who may be an illegal immigrant, but that's all that you can do. You can't, you being the state police, cannot hold somebody because they think he might be violating immigration law.

Jose Cardenas: How much of a surprise was it that this court, supreme court, reached the decision it did? When they decided grant review of the ninth circuit's decision, pretty much in favor of people challenging the law, given the make-up of the court, they are going to come out and support the law.

Paul Bender: I think there was surprise, a feeling -- the court had decided other immigration-related cases, some from Arizona, where they sided with the state. I think there is a feeling that hey they are going to uphold this law. They didn't. They really struck the whole thing down, because the only part they left was a part that doesn't give the state any independent responsibility to enforce immigration law. And they made it absolutely clear that the state could not do that on its own. It could only do it under the supervision of the Federal Government.

Jose Cardenas: Daniel, SB 1070, never really got into effect, most of it, and even the part that was upheld, there was an injunction, temporarily putting it on hold until it went through the court system, but there was a lot of turmoil, you had the boycott, you had attempts to enact further restrictive legislation, and you have people thinking there was a high-water mark in the anti-immigrant moment.

Daniel Gonzalez: A lot of ways it really was the high-water mark. Because in the year that -- that filed, there was additional immigration enforcement legislation. They tried to keep pushing its agenda. You recall the business community rose up, remember, there was a full page ad taken out in The Arizona Republic condemning this kind of legislation and asking the legislature to move on. Those bills did not go forward. In the years since SB 1070, we have seen fewer and fewer immigration enforcement bills come through the legislature., even be proposed in the legislature, none of it passed. This year, I am pretty sure, there was not a single immigration enforcement piece of legislation put forward. I think in a lot of ways, Arizona has kind of moved past this issue. You don't hear the kinds of rhetoric that we were hearing and the dreamers issue, driver's license issue, we saw that Governor Brewer really still dug in her heels until the very last day of office, trying to deny dreamers to get driver's licenses if they have the deferred action. But under the new governor, Governor Ducey, we haven't heard this same kind of rhetoric. We haven't heard him coming out in favor of dreamers, we haven't seen him pushing to allow dreamers to get driver's license, but on the other hand, we haven't heard him say the same kind of rhetoric. It really represented the high-water mark. We have seen quite a change since then.

Jose Cardenas: How about on the legal front, person widely credited as the legal author of the 1070, attorney general of the state of Kansas --

Paul Bender: What was his name --

Jose Cardenas: And Alabama tried its hand at this and didn't get too far. Do you think that the steam has gone out of these kinds of efforts or is it just a temporary pause and it is going to come back?

Paul Bender: It seems to me the steam has gone out of it and I think largely because the supreme court was so clear about the fact that the state just could not do that. They couldn't decide, hey, the Federal Government is not doing its job, so we'll do it for them. And I think the other thing happening, I think a lot of interest and attention to the focus on President Obama's decision to sort of regularize the place here of some people who undocumented, but who have been here for a period of time, and who have kids here, who were born here, who were citizens, and I think the anti-immigration feeling, a lot of that has been diverted to blaming Obama for doing that and so it is more -- it has become more of a thing, anti-Obama thing and it has taken some of the anti-immigrant character out of it.

Jose Cardenas: There is a -- it has been five years. It has been tumultuous five years but we're done for now. We will see what happens in the next legislature perhaps, what happens in the elections and thank you both for joining us on "Horizonte" to talk about that.

Daniel Gonzalez: Thank you.

Paul Bender:Law Professor, Arizona State University; Daniel Gonzalez:Journalist, Arizona Republic;

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