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Breathing While Undocumented—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on April 26, 2010.

Breathing While Undocumented
By Linda Greenhouse ’78 MSL

I’m glad I’ve already seen the Grand Canyon.

Because I’m not going back to Arizona as long as it remains a police state, which is what the appalling anti-immigrant bill that Gov. Jan Brewer signed into law last week has turned it into.

What would Arizona’s revered libertarian icon, Barry Goldwater, say about a law that requires the police to demand proof of legal residency from any person with whom they have made “any lawful contact” and about whom they have “reasonable suspicion” that “the person is an alien who is unlawfully present in the United States?” Wasn’t the system of internal passports one of the most distasteful features of life in the Soviet Union and apartheid-era South Africa?

And in case the phrase “lawful contact” makes it appear as if the police are authorized to act only if they observe an undocumented-looking person actually committing a crime, another section strips the statute of even that fig leaf of reassurance. “A person is guilty of trespassing,” the law provides, by being “present on any public or private land in this state” while lacking authorization to be in the United States — a new crime of breathing while undocumented. The intent, according to the State Legislature, is “attrition through enforcement.”

Representative Raúl M. Grijalva, a Democrat from Tucson, has already called on the nation’s business community to protest the law by withholding its convention business. Such boycotts can be effective, as demonstrated in the late-1980s when the loss not only of convention business but of — horrors! — the Super Bowl prompted Arizona voters to reinstate a Martin Luther King holiday in the state.

But a boycott is a blunt instrument that can hurt innocent business owners and their employees. So I will stick to my own personal protest without presuming to urge anyone else to follow my example.

Rather, I’ll offer a reflection on how, a generation ago, another of the country’s periodic anti-immigrant spasms was handled by the Supreme Court. In 1975, Texas passed a law to deprive undocumented immigrant children of a free public education. Many thousands of children — a good number of whom were on the road to eventual citizenship under immigration laws that were notably less harsh back then — faced being thrown out of school and deprived of a future.

The law was challenged in federal court, with the Carter administration supporting the plaintiffs. By the time the case, Plyler v. Doe, reached the Supreme Court, Ronald Reagan was president, and there was a major debate within his administration over whether to change sides. Rex E. Lee, the admirable solicitor general, refused to do so.

In June 1982, by a vote of 5 to 4, the Supreme Court struck down the Texas law. Justice William J. Brennan Jr. wrote for the majority that the constitutional guarantee of equal protection prohibited the state from imposing “a lifetime hardship on a discrete class of children not accountable for their disabling status.” Justice Lewis F. Powell Jr., a Nixon appointee and the swing justice of his day, provided the fifth vote. The law “threatens the creation of an underclass of future citizens and residents,” he wrote.

I have no doubt that but for that ruling, public school systems all over the country would be checking papers and tossing away their undocumented students like so much playground litter. Blocked from that approach, local governments now try others. The city of Hazleton, Pa., passed a law that made it a crime for a landlord to rent an apartment to an undocumented immigrant. A federal district judge struck down the law on the ground that immigration is the business of the federal government, not of Hazleton, Pa.

Indeed, federal pre-emption would appear to be the most promising route for attacking the Arizona law. Supreme Court precedents make clear that immigration is a federal matter and that the Constitution does not authorize the states to conduct their own foreign policies.

My confidence about the law’s fate in the court’s hands is not boundless, however. In 1982, hours after the court decided the Texas case, a young assistant to Attorney General William French Smith analyzed the decision and complained in a memo: “This is a case in which our supposed litigation program to encourage judicial restraint did not get off the ground, and should have.” That memo’s author was John G. Roberts Jr.

So what to do in the meantime? Here’s a modest proposal. Everyone remembers the wartime Danish king who drove through Copenhagen wearing a Star of David in support of his Jewish subjects. It’s an apocryphal story, actually, but an inspiring one. Let the good people of Arizona — and anyone passing through — walk the streets of Tucson and Phoenix wearing buttons that say: I Could Be Illegal.