Category Archives: undocumented immigrants

John Locke and Immigrant “Anchor Babies”

Each week it seems right wing extremists come up with yet another argument against immigrants of color, particularly those who have no papers and who cross the deserts or the Rio Grande along our southern border. The latest involves “anchor babies” and the 14th Amendment. Wow!

But, if one could — for only a moment– divorce it from the 14th Amendment and look at the issue of birth citizenship in terms of a thought experiment, you might agree it raises some interesting questions about consent in democracy and indeed is a worthy and perhaps important debate.

The question of whether children of undocumented immigrants who are born in this country should enjoy rights of citizenship is a centuries old  question about political membership and having voice, concepts which are the basis for our democracy, and which we should debate because they raise important questions of political identity and constitutionality.  This question finds its origins in the political writings of John Locke, an honorary founding father whose theories are embedded in the Declaration of Independence, and who is also a faux hero of the right because of his notion of property rights and minimal government.

Here’s what I think Locke would say about “anchor babies.” Regrettably, he likely would side against the idea of children born to undocumented immigrants getting citizenship.  Not on racial grounds of course but on the grounds of consent.  Locke believed that citizenship and membership into political society was based upon active consent, something that babies–regardless of where they are born–simple are unable to give. No babies are citizens. period.

Since Locke believed the legitimacy of the state came from the consent of the governed at the age of discretion (consent), citizenship is not conferred by birth. According to Locke, every person is born free and equal under authority of their parents. Since what government that person might obey is matter of consent, not birth, and  one cannot confer consent until they reach the age of discretion,then undocumented children would not be citizens. But neither would the rest of our kids.

For Locke, full fledged citizenship is attached to express consent, which is conferred by way of some  mark of allegiance (vows; oath) that pledges the acceptance of the form of the state (See his 2nd Treatise, Section 118-122 on citizenship) by express promise and compact.

So, if we strip citizenship from “anchor babies” we must also strip it from all children.  On the other hand, the bad news for “anchor babies” however is good news for lawful permanent residents who wish to become naturalized as citizens.  In fact, according to Locke, naturalized citizens are society’s only full fledged citizens.

That means– and I really want the right wingnuts to focus in on this, citizenship becomes a tiered status  with the top tier going to the millions of newly naturalized citizens, holding up their hands and taking the oath in mass ceremonies around the country.

The rest of us who were merely born here, gave what he referred to as “tacit consent” a second tier form of consent, which argues for second tier panoply of rights and privileges.

IN short, if the right wing wants to have this debate and the Glenn Beck’s among them will likely base some of the debate on classical liberal history, then let’s do it right.  If Locke is to be an inspired voice for the right-wingers in this debate, then get him right.  The tacit consenters among them (Glenn Beck, Rush; Senators Kyle, McCain…) must concede readiness to relinquish their own privilege and hand it to their Latino brothers and sisters who take the oath and expressly consent to our form of government.

If comprehensive immigration reform ever comes to pass, and it will, then 11-12 million undocumented immigrants will soon (in five years) rightfully take their place among the first tier of citizens, as our governing class.  And I take it that this scenario will have the right’s fervent support. right?


SB 1070 Challenge not Over Yet

As expected, Arizona Governor Jan Brewer just announced the state will appeal Judge Susan Bolton’s decision to grant a preliminary injunction on SB 1070, which means the struggle continues. Although the injunction is great news for the immigrant rights movement and for all Americans and immigrants, when the clock strikes midnight tonight, several backwards provisions in SB1070 are still going into effect.

Tomorrow, it will be a state crime for persons to harbor and transport undocumented immigrants, and the state could impound/remove the vehicle used for harboring/transporting.  Some day laborer provisions remain intact as well. For example, it is unlawful to enter a vehicle in order to work or to hire someone, in a manner that impedes normal flow of traffic. This was an argument made in the friendly House complaint and not addressed in Bolton’s decision.

Further, the decision did not enjoin the private right of action by individuals to sue law enforcement if they maintain that police are not enforcing immigration law to the  fullest extent authorized.

Such issues not covered raises additional questions that will have to be worked out on appeal or back in the legislature. For example, since police cannot ask for documents, what exactly do individuals have a private right to sue for?  It also remains a question whether yet another injunction will be granted for the Friendly House case. It’s ambiguous because although the judge granted today’s injunction for U.S. v Arizona and not for Friendly House, her decision responds to several issues raised in the Friendly House case– not in the DOJ case.

In the meantime, the real challenge tonight is for the WH to respond in a proactive way. More than just patting their DOJ on the back, the president needs to proactively get in front of the issue and lead congress to enact CIR.

Judge Bolton grants Preliminary Injunction on SB1070

This afternoon Judge Susan Bolton, federal district judge, Arizona, granted a preliminary injunction to stop enforcement of provisions in SB 1070, Arizona’s ‘papers please” law.  The decision shifts the narrative in the immigration debate. no longer can anti immigrant conservatives insist that Arizona is merely enjoining acts also enjoined by federal law.  According to the court, Arizona preempted federal authority to regulate immigration.  The message for other states intending to follow the Arizona template: “don’t do it.  It is illegal.  You will be challenged. And, you will be beaten.”

So, when SB1070 goes into effect tomorrow, July 29, 2010, the state will not be able to require police to inquire about the immigration status of anyone they stop, detain or arrest if they reasonably suspect the person is in the countryb illegally. (Section 2)

It will not be able to criminalize the solicitation, applicatioon for, or performamnce of work by an undocumented immigrant (part of Section 5)


The state cannot authorize the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable. (Sec 6 of SB 1070)

Still to come is a trial on the merits. The state of Arizona can, and likely will appeal the preliminary injunction.  So the 9th circuit could reverse as soon as tomorrow, or. it could take months.  Still to come is a decision on the merits and likely, lengthy appeals.

In other words, today’s victory is a step in the process. Hopefully, it shifts the debate; Hopefully too, it puts pressure on the Obama Administration to show stronger leadership over the CIR debate.

The preemption issue is important; but perhaps more important as far as the quality of life for immigrants is concerned, is for the court(s) to also attend to underlying privacy, due process and equal protection issues.  Whereas preemption deals solely with federalism and prevents a patchwork of strong anti-immigrant state laws, the problem of systemic abuse against immigrants applies to the federal programs as well as to state transgressions.

Immigration Control’s Strain on Democracy

Check out  my guest post in today’s Washington Post Political Bookworm blog

Arizona Shames the Nation

Comprehensive immigration reform moved to the front burner this afternoon at 4:30 ET.  At that moment, saying she did not know what an “illegal alien” looked like,  Governor Janice Brewer criminalized her entire state. She signed a bill into law (SB 1070) that presumed every person in the state of Arizona to be an “illegal alien,” and she made being an “illegal alien” a crime.  If Arizona recognizes that racial profiling is illegal, and if the Governor herself cannot categorize what her law enforcement will be forming reasonable suspicion about, then everyone is presumed guilty.

In so doing, Governor Brewer joined southern governors during the 1950s and early 60s in nullifying the constitution and federal civil rights law.  Arizona has just become the Mississippi of the 21st century. Further, to the extent SB 1070 is part of a larger Republican Party strategy– informed by the right wing nativist/Tea-bagging faction, then the southwest just became part of the GOP’s  southwestern strategy which appeases old whites and writes-off swelling numbers of Hispanic voters. A stupid electoral strategy  in addition to being racist and illegal.

Here’s what SB 1070 is about:

Makes it a crime to be in the country illegally ◦Requires local law enforcement and other state officials to determine the immigration status of anyone they encounter as part of a “lawful contact” if there is reasonable suspicion to believe that person is in the country illegally ◦ Race and ethnicity not to be used as sole factor but it can be used as a factor. Police can conduct warrantless arrests of anyone who cannot immediately produce documents ◦If a lawful permanent resident, can get 6 months in jail and $100 fine if don’t have papers on spot but produce them later.   If residents believe local police not enforcing immigration laws, they can sue them ◦Outlaws the hiring of day laborers ◦Prohibits anyone from knowingly transporting an undocumented immigrant for whatever reason

The kicker of SB 1070 is that  it leaves the Hispanic community to live in fear, and shame.  Just today, Governor Bill Richardson (D-NM) said he will now think twive before going to see his Arizona Diamondbacks baseball team. Congresswoman Loretta Sanchez said on TV she now considers herself a target were she to go to Arizona. which leads to considerations about constitutional violations. The Obama Administration DOJ is investigating possible civil rights violations.

And perhaps the economic ramifications can hurt the state most. Congressman Raul Grijalva recommends an economic boycott of his home state.  And as Keith Olbermann pointed out this evening, consider Manny Ramirez– who plays spring training in Arizona, being pulled over and arrested for not carrying his paper. Olbermann suggests it wise for major league baseball to look elsewhere for spring training next year.

On Again: Immigration Reform Coming

Looks like comprehensive immigration reform is back on track to be rolled out this spring.  Roll Call has just said that Speaker Pelosi “would welcome an immigration bill this year” to the House.  Immigration reform has suddenly become so important that it has leap-frogged climate change as the next major bill in Congress

Pelosi met with Senate Majority Leader Harry Reid (D-Nev.) earlier this week and agreed that a “moral imperative” exists to move forward with a bill, even if it means scrapping energy legislation until the next Congress, aides said. Pelosi views a comprehensive effort to tackle climate change as the flagship issue of her speakership — a point that she made to reporters Thursday. But Reid appears to favor moving immigration first, and Pelosi, in her meeting with him, didn’t object.”

It seems clear that this shift in agenda setting is due to recent changes in the political winds.  Hispanics and immigrant rights activists, SEIU and civil libertarians everywhere  are gearing up for a major response come this Saturday to Arizona’s SB 1070, which is now sitting on Governor Brewer’s desk awaiting her signature or veto.   SB 1070 would pretty much require Latinos in the state to carry immigration/citizenship papers with them whenever they leave the house. It would “require” law enforcement to question anyone– almost anywhere- about their immigration status –upon a reasonable suspicion that they are unauthorized to be in the country–and to arrest that person if they fail to produce documents.  For decades in border regions, such reasonable suspicion has coincided with skin color, language spoken and surname.   By the way, SB 1070 has the support of about 70% Arizonans, which is why the governor who is running for re-lelection this year, is likely to sign it into law.

Next, Senator Harry Reid’s state of Nevada has a growing Hispanic population. Reid is losing in his re-election bid to a former tv personality who has just proposed replaced health reform with a chicken barter scheme.  get that tooth pulled for 2 chickens and some firewood!

Finally, as FDL reports, the Obama White house may have determined now is the time to wedge immigration between Latinos and the Republican party once and for all.

A couple things remain to be seen, however. First, is what CIR will look like at this time.  The routine for the past several months has been that liberal sounding reforms have made major compromises to the right before the legislative process even gets under way.  I fear some incredible bows towards the pro sovereignty criminalization wings of Congress. Next, even with such right wing compromises, I still do not see how the legislation– which in some form will regularize status for 12 million undocumented immigrants gets through or avoids filibuster. Along with SB 1070, the Arizona House just also passed a “Birther Bill” that requires candidates– ahem– the president to show “he is qualified” to be president next time he wants to get on the ballot in Arizona. Five other states are considering similar moves.

CIR will certainly bring some of these tensions to a head.

Andy Stern & Immigration Reform

Like others, I’m reading the T-leaves to see if comprehensive immigration reform is likely to be advanced in 2010. Positive signs leaked out of Harry Reid’s office a few days ago, but then yesterday, the door seemed to creak shut.

Two reasons:

1) Harry Reid’s office said that immigration reform would not be brought forward in the Senate this work period. The more it is delayed and the closer to summer and the campaign season we get, the more unlikely serious reform becomes. If CIR is introduced, it is likely to be a symbolic gesture to energize latino voters, rather than an all out fight to pass a complicated reform bill.

2) More important is the departure of Andy Stern from the helm at SEIU.  SEIU has been at the forefron of immigration reform for the pasty several years. It is the organization most responsible for turning out 200,000 people on the DC mall March 21. Further, Andy Stern’s efforts to push through hcr were invaluable. His efforts here were largely behind the scenes, but he steered SEIU into pivotal positions of leverage against wavering members of congress, promising, among other things, not to support members who did not vote for HCR. And he has kept to his word. SEIU has been organizing against rogue members. In my opinion, were CIR to become a reality this year, such efforts would need the full weight of SEIU behind them.  With Stern’s departure, that is a little less likely to occur.