Civil rights veteran and president and general counsel of the Mexican American Legal Defense and Education Fund, explains the constitutional battle between the federal government and the state of Arizona over immigration.
July 8, 2010
MALDEF Thomas Saenz
In '09, Thomas Saenz was named as one of Hispanic Business' "100 Most Influential Hispanics." He also returned to MALDEF as president and general counsel. He'd previously been with the nonprofit organization for 12 years, where he started as a staff attorney and went on to successfully challenge California's Prop 187 and lead numerous civil rights cases. In the interim, he was counsel to L.A. Mayor Villaraigosa. Early in his career, Saenz clerked at the federal district court and the U.S. Court of Appeals after earning his J.D. from Yale.
Tavis: Thomas Saenz is president and general counsel of MALDEF, the Mexican-American Legal Defense and Educational Fund. Founded in 1968, MALDEF is the nation’s Latino legal civil rights organization. Tom, good to have you back on the program.
Thomas Saenz: Good to see you, Tavis.
Tavis: Let me start by going right at this argument, as I’ve been following this and discussing it here on TV and on my radio show. I’m starting to hear now an argument that’s being made by you and others against this law in Arizona, and I’ll let you explain it, but what I’m hearing is an argument being made on constitutional grounds that this is about the unity of the country or the disunity of the country if it’s allowed to go forward.
As you know, there are other states now wanting to copycat what Arizona did. Tell me what the epicenter of the argument is that you all are going to levy against the law. Then we’ll come to the Justice Department decision to file the suit in just a second.
Saenz: Well, in the suit that we filed together with other organizations, including the ACLU and the National Immigration Law Center, we make a number of legal claims. But the primary claim is what you’ve just alluded to, which is under our constitution, the federal government has the exclusive authority to regulate immigration and that stems from the constitutionally assigned authority to engage in foreign relations and to establish naturalization rules.
It also makes logical sense. We would cease to be one country if Arizona could have its own immigration laws and California had different immigration laws and Texas had different and New York and Maryland and Maine and all the rest of the states had their own immigration laws. Then we would cease to be one country. Each state would become its own country if we allowed each of them to have their own immigration regulations.
Tavis: If Governor Brewer of Arizona were on this program, as you well know, her response to that would be we are only doing what we have done because, to Mr. Saenz’s point, the federal government has abrogated its responsibility, they’ve abdicated their responsibility to do example what Mr. Saenz says they ought to be doing, which is to secure the border. So we’re only doing it because the federal government has not stepped up, as it were.
Saenz: Well, there are certainly issues with our federal immigration laws and regulations. I probably would have different views about what some of the problems are than Governor Brewer, but constitutionally, the remedy for a state like Arizona or a governor like Brewer, who is unsatisfied with what the federal government is doing, is to direct the representatives of Arizona in Congress and in the Senate to change the law, to change federal regulations.
But we don’t have any self-help provision in our Constitution that says if you’re dissatisfied with something the federal government is doing, you get to do it on your own. Arizona might be dissatisfied with how the Obama administration is conducting foreign policy, but that doesn’t give Arizona Governor Brewer the right or the authority to go and engage in her own negotiations with a foreign government. This is exactly the same, in a different realm.
Tavis: Again, if she were here, I’d suspect her argument — I’m just playing devil’s advocate, obviously.
Saenz: Of course.
Tavis: I suspect her argument might be that okay, as a Republican I might not agree with Obama’s foreign policy objectives, but his foreign policy issues are not directly impacting the governance of my state. Illegal immigrants are directly impacting life or the quality of life in my state. It’s impacting taxes, it’s impacting the work force, it’s impacting law enforcement. So it’s a little bit different than foreign policy, she might argue.
Saenz: Well, I think first, it’s not that different from foreign policy. Foreign policy, as you know, has direct, everyday effects on communities around the country. Part of foreign policy is the fact that through the course of the last administration we were engaged in two wars in Afghanistan and Iraq.
That obviously has a direct influence on what happens in every state, including Arizona, with the impact of folks being sent overseas, the effect on their families who remain stateside, and then the aftermath of their returning; some of them with severe and lifelong injuries that they sustain in battle. That’s part of foreign policy.
The premise is incorrect, but beyond that I know that Governor Brewer’s “facts,” quote, unquote, around the impact of undocumented immigration in Arizona are simply untrue. She most recently argued that the majority of folks crossing the border are in fact drug mules, and even the border patrol had to explain politely that there wasn’t a lot of truth in the quote, unquote, “fact” that she was relying upon.
In truth, if you look at what’s going on in Arizona, crime has gone down. It’s not gone up recently. The suggestion that there is a connection between undocumented immigration and law and order is simply false. Indeed, if you look at the greatest impacts of SB1070 if it were implemented — I don’t think it will be.
I think we’ll succeed in court in preventing this law from going into effect, but if it did go into effect the greatest problems that it would create would relate to law enforcement, because you would see law enforcement officers cease to have cooperation from the community.
As soon as a community understands that a law enforcement agency is required to enforce immigration laws, then immigrants, both undocumented immigrants and legal immigrants, will no longer have the confidence to cooperate with police in investigating other crimes.
There will be a palpable impact of this, were it implemented, on crime going in the opposite direction. It would increase criminal problems in Arizona.
Tavis: Speaking of Governor Brewer, as we know and since I last saw you, Governor Brewer met with President Obama in the White House about this particular issue. The president, of course, subsequently has given a speech in Washington to the nation about the immigration issue.
Let me just ask you what you make of the speech that he gave about immigration reform.
Saenz: I think it was an important speech because it reemphasized how urgent it is that we address the need to reform our immigration laws. This has been on our national agenda for over a decade and we have not made any progress in attempting to address the problems with our immigration system.
So I think the president’s speech emphasized the urgency and he, I think, leveled a challenge at leaders in the Congress from both parties to recognize that urgency and to begin to make concrete steps forward in how to reform our immigration system.
Tavis: What he said in that speech, though, Tom, is that he can’t advance this agenda without Republican support, number one, I want your thoughts on that, and secondly, there are those who think, with respect to the president, that it was not a ploy but that it was something that he had to do given these midterm elections and not wanting to surrender the Hispanic vote by not saying anything about what needs to be done about immigration reform.
Saenz: Well, I don’t think it was a ploy, but I think the proof whether it was a political move or not depends on what the follow up is. Because I think the president is correct — it requires congressional leadership on both sides of the aisle to accomplish the kind of change that we need in our immigration laws, but I also think that there’s still a role beyond the speech for the administration to play in leading the Congress toward making the kind of changes that are needed.
Tavis: Let me pressure you on this. I know the sentiment behind it, but why does it require, one might ask the president, why does it require leadership on both sides of the aisle? We thought bipartisanship was the answer on healthcare. When it came down to it he didn’t get a single vote from Republicans to get healthcare through, and yet we celebrate the fact that healthcare was passed.
So why couldn’t, one might ask, the same thing be done if we were serious about immigration reform? The Democrats pushed through healthcare. Why can’t they push through immigration reform?
Saenz: Well, I think that’s a good question. I think part of the answer lies in the fact that we have a situation where now apparently a majority in the United States Senate is 60 and not 51, like it used to be, and the Democrats only have 59 votes at this point; 58, I guess, with the passing of Senator Byrd. So that’s, at a real political level, the basic problem and why bipartisan support is required at this point.
But historically, whenever we’ve changed our immigration laws it has taken a bipartisan approach. It has taken agreement from leaders on both parties to accomplish the kind of significant change to have an immigration system that better reflects our constitutional values and our national interests.
It should not be impossible to achieve, because over the course of the last decade, as you know, we’ve had a number of proposals to both address immigration reform in a comprehensive way and then in a more limited way make progress in beginning to make the changes if needed. All of those efforts have included support from both political parties.
Tavis: To your point now, there are two or three — and you know this better than I do, and without getting into the details — there are two or three smaller bills right now that the White House could be instrumental in getting pushed through without having to wait for the big immigration reform measure. Are you hopeful about that?
Saenz: I am hopeful that we can make some progress in the year 2010. I think the community has waited for a long, long time, the national community has waited for a long time, to get something accomplished in changing our immigration laws. Some of the discrete bills that you’ve mentioned, I think, have a real chance of moving forward.
The Dream Act, which as you know would benefit those who were brought here as children in an undocumented status and have done well in school, well enough to move on to higher education or military service. These are kids who are ready to make a real contribution to our economy, but they get all of this education all the way through university and sometimes into graduate school and they’re unable to work because of their status.
The Dream Act would give them the opportunity to make the contribution to our economy that they prepared themselves to make and are eager to make. I think it’s an important step.
Another bill is called ag jobs, which would focus on the fact that we have one industry, particularly important in California but throughout the nation — agriculture. I don’t think that there’s much of a debate that there is not a domestic work force, and you need an immigrant work force in that particular industry.
Tavis: Got a minute to go here. To the case now that the Department of Justice has filed that they were going to fight this law in Arizona, you intimated earlier that you believe that that case will be successful. If it’s successful, ultimate success means stopping the law before it goes into effect July 29. You think it can be that effective, that successful?
Saenz: We have a date right now of July 22nd, a week ahead of the implementation, for a hearing on our motion for a preliminary injunction that was filed in our case. I expect the federal government will also get a similar date or the same date for their motion for a preliminary injunction. If we get a preliminary injunction, that means that the law cannot take effect while we move forward while resolving the constitutionality in court.
Tavis: The chances of that happening you think are what?
Saenz: I think we have a very good chance. The standard to determine whether you grant a preliminary injunction is how likely are you to succeed on the legal merits. We have a very strong case about the supremacy of federal law. Number two, whether there’s irreparable harm if the law is implemented.
Tavis: From MALDEF, Tom Saenz. We have been, of course, following this issue and we’ll continue to follow it in the days and weeks ahead to see what this showdown will bring later this month. Tom, good to have you on the program.
Saenz: Thank you, Tavis.
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Last modified: April 26, 2011 at 12:28 pm