Based on the oral arguments, it’s likely that the Court won’t strike down the most controversial elements of SB 1070.

Determining what's going to happen from transcripts of oral argument in the Supreme Court is, in general, impossible. For one thing, the people there don't know. Votes change, cases change, opinions change. Insiders with the best possible knowledge don't know when a case has been argued. I know. You might have an idea that in many cases turns out to be right, but with the canniest will in the world you couldn't know enough to make bets on the outcomes. For another, Justices do not behave at oral argument in a fashion that closely correlates with their eventual votes on the merits. Some of them sometimes, some of them often, ask questions that press very firmly in a direction their first conference vote a day or two later does not reflect. Not only my own experience but lots of published documentation shows this.

The reason why was no major assault on SB 1070 from the higher court is because the US Solicitor General, Donald Verrilli, didn’t focus on racial profiling or alienage discrimination. In fact, the Chief Justice raised these issues at the outset by asking Verrilli: “No part of your argument has to do with racial or ethnic profiling, does it? I saw none of that in your brief.” Verrilli confirmed: “We’re not making any allegation about racial or ethnic profiling the case.” Instead, Verrilli and the Justice Department are arguing that AZ’s law is preempted because the Constitution vests exclusive authority over immigration to the federal government.

On the legal and political analysis, you see that it's already more complicated than you described, and the Supreme Court hasn't even decided Arizona v. United States yet. The President has moved aggressively to secure support from people like you and your friend, who is precisely affected by his executive order. We'll soon see what it really means in practical immigration law terms, but the immediate political, organizational meaning is that he's giving the strongest reasons for you to help bring people to the polls for him in swing states in November. Arizona, no matter which way the Supreme Court rules, will be a much harder state for Republicans to carry if every Latino person entitled to vote registers and votes. Nevada will again belong to the Democrats. In fact, what happens in almost all the swing states could be affected by strong growth in Latino turnout. And even if the Supreme Court has found its way to a holding that the federal immigration power hasn't preempted this legislation—which would be quite a change from the constitutional law of preemption we thought we knew when I was a youngster at the Court—a reelected Obama Administration would have good reason to pursue in new litigation the "unconstitutional as applied" challenges that you too recognize are really the heart of the civil rights case against these laws.

You should revise when the Court opinion comes down, in the next few days.

A Note on Self-Deportation

I don't understand what the use of Jerome Frank's vocabulary out of context is doing for you. "Self-deportation," like "illegal alien" are terms of political rather than legal significance, designed to reach unconscious rather than rational motives for social action. The goal is to prevent the United States from being a democracy with an even larger number of working-class people struggling to improve their lives at the expense of the rich. The best way is to divide workers against one another, along racial and ethnic lines, and to encourage workers to believe in the necessity of using violence against other workers to prevent them from "being illegal" and striving to "steal" citizens' jobs.

I don't think this has much to do with law, and you don't either. The idea that people are "illegal" because they aren't possessed of orderly immigration papers, or that they are committing an offense like murder or rape, is—in legal terms—a lie. In political terms, it's just another way of dehumanizing potential coalition partners for one's adversaries, in order to prevent the development of an opposing political force too strong to resist.

I exist because one boy, sixteen years old, came to the United States, alone, with no English, no friends, and no trade, let alone a job, in the fall of 1913. Under current law, he would have been refused entry, and would presumably have been murdered, along with all my other patriline relatives, between 1940 and 1944. He sent his youngest son, my father, to Harvard. Every "illegal" boy in the street is my grandfather. Those who want to send him away, or hurt him until he crawls away on his own, had better watch their backs until I am safely dead.

For you, as well as for me, the rest is bullshit. Write it that way, as you really know it is, and we'll all be fine.

Self-Deportation is Modern Magic

-- By LizzieGomez? - 15 Feb 2012

Introduction

Illegal immigration in America is a “legal problem” in the fullest sense conveyed by Robinson in Lawyerland. The solution, if one exists at all, doesn’t lie only within the parameters of the law but involves forces outside the law – economics, race relations, politics.

Recently, Mitt Romney presented his solution to America’s immigration reform at a GOP debate in Tampa. “The answer,” as he called it, was self-deportation. In short, it is the idea that undocumented immigrants will voluntarily choose to leave this country if life here is made unbearable enough. The term is mocked because it combines the notion of getting expelled and choosing to leave one’s country, but it is no joke. The theory is synonymous with a strategic plan developed by anti-immigrant groups called “attrition by force,” which is embodied in laws denying work, education, transportation, housing services to those who cannot prove their legal immigration status. This facilitates the passing of state laws like in Arizona, Alabama, and Georgia.

While never soft on immigration, Romney’s recent hardline stance on immigration dropped any pretense of a moderate view. My view on this is simple: Taking Frank’s concept outside the courtroom, I find self-deportation an incantation of primitive magic by attempting to classify and reconstruct a legal process that instills anxiety and fear into something that is controllable and familiar. Self-deportation is disguised as a passive resistance of immigrants to provide mental ease and certainty over a subject area that reveals our impotence as a society.

What’s the Magic?

Modern legal magic is not just found in trials. Frank writes that magic appears when primitive man tries to confront “specific practical problems when he is in peril or in need.” (45). In this case, politicians, statisticians, and economists (the list can go on) have all tried to resolve without success America’s illegal immigration problem. The issue is a divisive one; citizens either want the government to focus on halting the flow of illegal immigrants altogether or on forming a comprehensive approach to those already here.

With no clear strategy of how to move forward, immigration reform (or lack thereof) engenders a cloud of uncertainty over the legal rights owed to undocumented workers and families. This is where magic appears, making what is subjective appear objective to instill a sense of reliability and “substitute unreal achievements for real.” Magic functions like science to do this; it uses a technological process of manipulation to turn what “might conceivably be true” to what “is true.” (45). Indeed, it’s a well-thought out approach according to the leading architects of self-deportation like the Federation for American Immigration Reform, who said: Illegal immigrants “are very rational people. They come here to get access to jobs and a lot of services. If you remove those incentives, they will respond rationally and leave.” In essence, Romney and the supporters of this platform have refashioned the facts about illegal immigration to bring it under their control.

Self-Deportation Exposed

On its face, self-deportation sounds less aggressive than conducting mass roundups and imprisoning undocumented workers. After all, immigrants would be choosing to pack up and leave the country. However, the means to this end is atrocious; at a practical level it requires strict oversight of employers, random identity checks, and blocking access to medical care and schools. By pushing for harsher regulation and hostility from state governments, this plan undercuts basic human rights, and heightens discriminatory abuses, devastates local economies.

Of course, the most glaring aspect of self-deportation is that it is not effective. Reports show that rather than push undocumented workers out of the regulated labor market, self-deportation will only move them into the “shadow economy,” a sector akin to an underground marketplace where “labor law are frequently unenforced or ignored.” As difficult as life may be for illegal immigrants, recurring to the shadow economy would be a step worth taking for many working parents who have U.S. citizen children.

A Personal Reflection

I'm lucky to be a naturalized U.S. citizen, not only in the thankful sense of the word but also purely fortuitous. I avoided the struggles that innocent children like Antonio Alarcon have to endure. It’s hard to understand how my family was allowed to live here in peace over millions of others. I believe it was all fortuitous timing and nothing more.

Yet to be so lucky to get temporary residency means a world of difference. From my small high school class, there were 2 who did not complete a college program, both due to immigration problems. One of those students is my best friend. His family did not disclose his illegal status until he applied for college. The truth was devastating because he had no control over the situation. He had over a 4.0 GPA and the sharpest mind of anyone in our school. Still, he could not get the federal loans he needed to finish his classes at UC Berkeley. He now works as a cashier at a bookstore. It is a dead end job relative to what he and I know he is capable of. Yet he cannot leave the job or the city because his immigration case is still ongoing. The topic is still painful for him to discuss; his goals and ambitions see far too distance to ever be realized.

Moving forward

In exposing modern legal magic in court trials, Frank was not concerned with finding a remedy. He writes: “You cannot control such courts unless you can also control their fact-finding. But that you usually can’t do.” (61). The point is for us to be aware of how the legal system is imbued with magical thinking.

Similarly, political debates over immigration reform will be filled with magical words to ease our fears of change and chance of some “alien nation.” I’m not sure, however, that we should idly sit back in this case. Minority leaders like Antonio Villaraigosa are right to call out Romney’s divisive self-deportation scheme, and I hope more get on board. (998 words)