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PREEMPTED? THE ARGUMENT
AGAINST ARIZONA’S TOUGH IMMIGRATION LAWS
by
Yamini Lohia
______________________________________________________________________________
A Thesis Presented to the
FACULTY OF THE USC GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
MASTER OF ARTS
(SPECIALIZED JOURNALISM)
May 2012
Copyright 2012 Yamini Lohia

ii
TABLE OF CONTENTS
ABSTRACT
iii
SB 1070: AN OVERVIEW
1
I. THE FEDERAL PREEMPTION ARGUMENT
7

II. THE CIVIL RIGHTS ARGUMENT
13
III. THE ECONOMIC ARGUMENT 20
BIBLIOGRAPHY 24
BUT WILL IT WORK? 23
iii

ABSTRACT
This essay is an examination of Arizona’s immigration law, the Support Our Law
Enforcement and Safe Neighborhoods Act, better known as SB 1070. The law, signed in
April 2010, re-ignited the debate over illegal immigration and brought it to national
attention, especially as it has since inspired copycat legislation from Alabama, Utah and
Georgia, among other. SB 1070 brings into focus the question as to how far a state can go
on its own in its attempt to address the problem of illegal immigration. This essay
examines SB 1070 as symptomatic of the larger trend of states challenging the federal
government’s right to formulate immigration policy. It will also argue that SB 1070 and
subsequent amendments are both unconstitutional and ineffective; unconstitutional
because it violates federal law while also denying rights guaranteed under the
constitution, and ineffective as the costs of implementation – both direct and indirect –
make the legislation expensive.

1

SB1070: AN OVERVIEW
1

When Arizona Governor Jan Brewer signed the Support Our Law Enforcement and Safe
Neighborhoods Act – better known as Senate Bill, or SB, 1070 – in April 2010, the
debate over illegal immigration and how far a state could go in its attempt to address the
problem on its own, without the federal government, entered the national and
international consciousness. SB 1070 was called the most punitive piece of legislation to
be signed into law in the United States at the time and was immediately controversial.
The purpose of this essay is to argue that SB 1070 and subsequent amendments are both
unconstitutional and ineffective; unconstitutional because it violates federal law while
also denying rights guaranteed under the constitution, and ineffective as the costs of
implementation – both direct and indirect – make the legislation expensive. This essay
also seeks to examine SB 1070 as a symptom of a larger trend of states challenging the
federal government’s jurisdiction over immigration policy.

It is important here to examine Senate Bill (SB) 1070 and acquire a contextual
understanding of where it came from whilst simultaneously exploring the facets that
make it so controversial. SB 1070 and the many copycats that have followed it (such as
Alabama’s immigration law, whose provisions are even stricter than SB 1070) are the

1
This essay is intended to be read as an argument against Arizona’s immigration laws written for a volume
on immigration published by Sage. The volume, called ‘Sage Debates on Immigration’, will use
point/counterpoint articles to explore prominent debates and explicate different sides of this complex issue.
The chapter on Arizona Senate Bill 1070 will have a 4000-5000 word ‘point’, which will argue that the bill
provides an important tool for law enforcement in a state currently overwhelmed with illegal immigrants.
This is the ‘counterpoint’, and its purpose is to demonstrate that SB 1070 invites discrimination, racial
profiling and harassment.

2

latest – and most punitive -- expressions of the growing backlash against Hispanic
immigrants, who are perceived as violating the immigration system. This is not to suggest
that Arizona does not have a problem. As a border state that has become a gateway for
illegal entry from Latin America into the U.S., Arizona’s undocumented migrant
2

population is estimated at almost half a million people by the Department of Homeland
Security, which is a significant number given that the state’s population is about 6.4
million (United States Census Bureau 2010).

With the economy tanking and unemployment reaching new highs in the aftermath of the
Great Recession, Hispanic immigrants became a convenient target for communities
particularly affected by the tough economic environment. Hazleton, a small town in
Pennsylvania, was, for example, one of the earliest to adopt stringent anti-immigrant
measures, despite Hispanics constituting only 4 per cent of the entire county’s population.
This is not unusual – researchers find that survey respondents tend to over-estimate the
size of the minority populations in their countries, a phenomenon they call ‘innumeracy’.
Daniel Herda finds that “immigrants appear threatening to respondents when they are
viewed as competitors for economic resources or as harmful to the majority group’s
cultural dominance” (Herda 2010). Alba, Rumbaut, and Marotz, who investigated
innumeracy specifically in the U.S., argue that those holding the most distorted

2
I use the term ‘undocumented’ instead of ‘illegal’ to refer to immigrants coming into the US without
authorization or the requisite paperwork. When discussing a subject as controversial and contentious as
immigration, terminology and language become important. The term ‘illegal’ is dehumanizing and
pejorative, and calls into question a human being’s right to exist. It is a loaded term that is used specifically
to identify those who are in the country illegally – a crime, to be sure, but it is not extended to those who
commit other crimes. A person driving a car under the influence is not, for instance, an ‘illegal driver’. Acts
are illegal; people are not.
3

perceptions of minority groups are also likely to hold the most negative attitudes towards
them (Alba, Rumbaut and Marotz 2005). Hostility towards demographically expanding
minorities, like Hispanics in Arizona (the Hispanic population in Arizona is estimated to
have increased fivefold since 1990), for instance, is then a common reaction to the
perceived threat to the majority and the privileges it holds.

It didn’t help that Arizona seemed to increasingly be facing a severe law and order
problem at the border, even though, according to statistics provided by the Federal
Bureau of Investigation, violent crime at the border and across Arizona had been
declining (On Border Violence, Truth Pales Compared to Ideas, 2010). In 1998, the
Tucson region overtook San Diego as the top place for Border Patrol arrests and accounts
for nearly half the total, while Phoenix is seen as the kidnapping capital of the United
States, averaging an abduction a day in recent years (Border states shun Arizona’s
immigration law, 2010). The shooting of Robert Krentz, a rancher, and his dog close to
the Mexican border in late March 2010 served as a tangible expression of the fears people
harbored over illegal immigration and its consequences. The incident provided an added
impetus to SB 1070 and highlighted, for its supporters, the necessity and urgency of
passing the law (Border Crackdowns and the Battle for Arizona, 2010).

It was in this context that SB 1070 was passed, although there is evidence to suggest that
grassroots support for the bill was ambivalent at best, and that the big push came from
lobbies within the national anti-immigrant movement. For instance, a report in the
4

Arizona Republic also highlighted the Republican Party’s fears that the bill would make
the party unpopular with America’s increasing Hispanic population (GOP worries
Arizona immigration law could hurt party, 2010). On the other hand, the bill was drafted
by Kris Kobach, a professor at the University of Missouri-Kansas City School of Law,
who is also a figure associated with the Federation for American Immigration Reform, a
non-profit organization aimed at amending U.S. immigration policy to substantially
reduce immigration.

Arizona is also no stranger to controversial anti-immigrant legislation – in 2006, then-
governor Janet Napolitano vetoed a proposal similar to SB 1070 and in 2007 the state
passed the Legal Arizona Workers Act, which was also on the docket of the U.S.
Supreme Court until recently, when it was upheld
3
. Governor Jan Brewer also worked
with the Arizona Department of Economic Security in 2009 to limit the availability of
social welfare programs to citizens (Arizona Immigration Law: History, Background, 2010).

SB 1070 was also popular in the immediate aftermath of its passage: although 100,000
people marched in protest against SB 1070 on May 29, 2010 in downtown Phoenix, a
‘Stand with Arizona’ rally was held elsewhere in the state. Opinion polls indicated broad
support for SB 1070, with a Gallup poll finding that more than three-quarters of
Americans had heard of the law, and 51 per cent of that number was in favor of it
(Opinion polls show broad support for tough Arizona immigration law, 2010). Similarly,

3
The law imposes harsh penalties on businesses that hire illegal immigrants.
5

a New York Times/CBS poll conducted from April 28, 2010 to May 2, 2010, found that
51 per cent of Americans thought that the Arizona law was “about right” in dealing with
illegal immigration (Poll Shows Most in U.S. Want Overhaul of Immigration Laws,
2010). Still, experts were quoted to suggest that polling was at best an inefficient method
of understanding the American public’s views of immigration, given how complex and
emotive an issue it really is (Opinion polls show broad support for tough Arizona
immigration law, 2010).

SB 1070 requires that local law enforcement officials question the legal status of suspects
when there is “reasonable suspicion” that they are undocumented immigrants. It makes it
a state misdemeanor crime for immigrants to remain in Arizona without carrying required
documents that indicate the migrant is in the country legally. As stated in the legislation,
it is intended to promote “attrition through enforcement” – which is to say that the state
intends the strict implementation of harsh immigration laws to lead to a decline in
migration, both in the resident population of irregular migrants as well as a decline in
new arrivals. “Transporting or harboring” an undocumented migrant are also grounds for
arrest, as is accompanying an undocumented migrant when local law enforcement is
acting on their “reasonable suspicion” (Arizona Senate Bill 1070 2010).

Of course, SB 1070 is currently barred from implementation as the U.S. Supreme Court
evaluates its constitutionality and deliberates on whether Arizona can trump federal
jurisdiction over matters related to immigration. Indeed, by the time this essay is
6

published, the U.S. Supreme Court may have already moved to strike down the Act.
Indeed, on December 15, 2011, the Supreme Court announced that it would review an
appellate court's decision that halted implementation of SB 1070 (Chishti, Bergeron and
Hipsman 2011). Still, the sheer number of copycat laws enacted across the United States
shows that SB 1070 is the earliest symptom of a growing turf war between the states and
the federal government. As of July 1, Alabama and South Carolina had passed copycat
legislation, while similar legislation has been introduced in three other states. In addition,
Arizona-style laws in Georgia, Indiana and Utah have been blocked by lawsuits.
7

I. THE FEDERAL PREEMPTION ARGUMENT
The stated purpose of SB 1070 is “to discourage and deter the unlawful entry and
presence of aliens and economic activity by persons unlawfully present in the United
States” (Arizona SB 1070 § 1). Although the Act is introduced in the first section with
the statement that “there is a compelling interest in the cooperative enforcement of
Federal immigration laws throughout all of Arizona”, in fact, several organizations
working on immigration-related matters, such as the National Immigration Law Center
and the Center for American Progress, contend that the Act attempts to supersede the
federal mandate over immigration laws. According to the provisions of SB 1070 and
Arizona House Bill 2162 (HB 2162, which was signed a week after SB 1070, and which
modified the provisions of the original Act slightly), state government officials or
agencies are prohibited from limiting or restricting the enforcement of federal
immigration laws (Arizona SB 1070 § 2, Article 8). The federal requirement that non-
U.S. citizens over the age of 14 who remain in the United States for a period of more than
30 days register with the U.S. government is reinforced (8 U.S.C § 1302(a)(1) and
(a)(3)), as is the directive that such persons maintain possession of registration documents
(Arizona SB 1070 § 3). SB 1070 and HB 2162 also specifically target U.S. citizens who
hire undocumented workers.

Why, then, has the Department of Justice brought a lawsuit against the state of Arizona,
asking that the law be declared invalid? It is not, after all, every day that the federal
government takes such an action. Supporters of the lawsuit and the federal position argue
8

that SB 1070 – and other laws of its kind – are preempted by the federal government’s
exclusive authority to regulate immigration and are therefore unconstitutional.
Preemption principles are based on the Supremacy Clause, Art VI, cl 2 of the
Constitution, which states that the U.S. Constitution and laws of the U.S. are the
“supreme[sic] Law of the Land”, describing Congress’ power to preempt state law as a
“fundamental principle” of the Constitution. Preemption as a legal doctrine is a necessity
in immigration law as there needs to be a uniform national policy towards immigration,
rather than 50 states enacting 50 different immigration laws requiring 50 different types
of enforcement.

Although the Constitution does not expressly grant the federal government the power to
regulate immigration, there is broad legal precedent to support the federal government’s
authority over immigration policy. The U.S. Supreme Court has consistently ruled that
the federal government has broad and exclusive power to regulate immigration.
According to a National Immigration Law Center (an organization dedicated to
“defending and advancing the rights of low-income immigrants”) document on federal
preemption, the Supreme Court, while upholding the Chinese Exclusion Act in the late
nineteenth century, described federal immigration power as a plenary power not subject
to normal judicial restraints (Guizar 2007). A Congressional Research Service report for
Congress states that an act of Congress may preempt state or local action in a particular
area in three ways: 1) The statute expressly states preemptive intent; 2) A court concludes
that Congress intended to occupy the regulatory field, which precludes state or local
9

action on the subject; or 3) State or local action directly conflicts with or otherwise
frustrates the intent the of the federal scheme (Manuel, Garcia and Eig 2011). The
separation between categories is not rigid.

Proponents of SB 1070 and HB 2162 argue that the laws merely enforce current federal
immigration law. This argument, however, collapses upon examination of the Act;
according to several legal scholars such as Gabriel Chin, a law professor at the University
of Arizona, and Kate Manuel, a legislative attorney, it creates at least three new
immigration crimes in Arizona that do not reflect federal policy (Chin et al. 2010, Manuel
et al. 2011). For instance, it is not a federal crime for undocumented migrants to work in
the U.S., while SB 1070 criminalizes such labor. As previously described, Arizona
targets any noncitizen transporting undocumented immigrants, but federal law only
prohibits transportation across the U.S.-Mexico border.

In the 1976 case De Canas vs. Bica, the Supreme Court set out three particular tests
(drawn from general preemption tests) to determine whether a federal law would preempt
a state or local law on immigration and related matters: 1) Constitutional preemption, or
whether the state was attempting to regulate immigration; 2) Field preemption, or
whether Congress had intended to occupy the field; and 3) Conflict preemption, or
whether the state law was an obstacle to or in conflict with the implementation of federal
law (424 U.S. 351 1976). Thus, if a state law was found to be in violation of any one of
the three tests, it would be deemed invalid.
10

The United States filed suit against the Arizona on July 6, 2010. On July 28 that same
year, U.S. District Judge Susan Bolton issued a ruling on the Justice Department’s suit,
granting a preliminary injunction that blocked some of the most controversial provisions
of SB 1070 from going into effect (703 F. Supp. 2d 980 2010). In a 36-page ruling, Judge
Bolton let stand most of the law’s 13 sections but found that certain provisions satisfied
the requirements for a preliminary injunction—irreparable harm and likelihood of success
at trial. She blocked the section of the law that required local and state law enforcement
officials to check the immigration status of those they suspected were undocumented
immigrants, ruling that this could mean that legal immigrants would be wrongly arrested
in addition to overwhelming federal resources. She also blocked a portion of the law that
required state officials to check the immigration status of anyone in custody in Arizona
before they were released from jail on the grounds that such a measure was preempted by
federal law as such checks would unduly burden federal immigration officials pursuing
different priorities.

Arizona appealed the injunction, but on April 11, 2011, the Ninth Circuit Court of
Appeals upheld Judge Bolton’s ban on certain sections of the law. The majority opinion,
written by Judge Richard Paez, agreed with Judge Bolton’s assessment that the state had
intruded upon federal prerogatives (641 F.3d 339; 2011 U.S. App. LEXIS 7413).

11

While it is unclear as to how the Supreme Court might interpret preemption, it appears
that Arizona’s attempt to ‘assist’ the federal government to enforce its immigration laws
is counterproductive and conflicts with federal enforcement policy. Arizona’s laws
clearly have more than an incidental effect on federal immigration policy – it is
specifically targeted at controlling who can and cannot be admitted into the country. At
the same time, the scope of SB 1070 and HB 2162 impinge on federal laws and Arizona’s
provisions interfere with the federal scheme. Thus, Arizona’s law may ostensibly appear
to supplement federal law when, in fact, it undercuts the federal government’s mandate
over immigration policy by adopting draconian measures not included in the federal
statute. According to the Immigration Policy Center (the research and policy arm of the
American Immigration Council), SB1070 would not only conflict with the federal
scheme, but would also put Arizona in a position to dictate priorities for immigration
enforcement to the federal government – a clear violation of the federal system
(Immigration Policy Center 2010).

Despite the uncertainty over SB 1070’s constitutionality, several reports suggest that
more than 20 states that view themselves as heavily impacted by illegal immigration have
discussed plans to introduce copycat legislation, although the passage of such measures
has been delayed (For e.g. Governor signs Arizona-style immigration bill into law, 2011;
Missouri schools would be required to verify immigration status of students under new proposal,
2012). But these states are likely to join Arizona on any new ground the SB 1070
12

eventually establishes – which could be a factor taken into consideration by the courts as
the lawsuit progresses.
13

II. THE CIVIL RIGHTS ARGUMENT
The legal challenge to SB 1070 might be concentrated on the legal doctrine of
preemption, but much of the public outcry following the passage of the law was
predicated on the fear that the law promoted racial profiling by state and local law
enforcement and violated the basic human rights of migrants, undocumented or legal.
Several non-governmental organizations including the American Civil Liberties Union
(ACLU) and the National Immigration Law Center, filed a joint class action lawsuit,
Friendly House et al. v. Whiting, in the U.S. District Court on May 17, 2010. Violation of
the Equal Protection Clause rights of racial minorities by subjecting them to stops and
detainment based primarily on their race was a significant part of their case against
Arizona. The Associated Press reported that thousands of people protested SB 1070 in
Phoenix on April 24, 2010 and tens of thousands organized protests in 70 cities across the
country on May 1 the same year (Border states shun Arizona’s immigration law, 2010).
People were motivated to boycott Arizona primarily for civil rights reasons.

The scope of SB 1070 extends to citizens as well as noncitizens given that it is impossible
to determine through sight alone whether a person is a citizen or a legal or undocumented
migrant. The National Association of Latino Elected and Appointed Officials Educational
Fund argues that “SB 1070 is an unconstitutional and costly measure which will
jeopardize the public safety of all Arizonans, violate their civil rights and subject
Arizona’s Latinos and newcomers to discrimination. . . It will lead to the violation of the
14

due process and civil rights of all Arizonans, and subject Latinos and newcomers to
unfair and illegal discrimination” (NALEO Educational Fund 2010).

The Civil Rights Act of 1964, broadly speaking, is designed to protect people from
segregation and discrimination on the basis of race, color or national origin. Specifically,
the Act outlawed the unequal application of voter registration requirements and
discrimination in public facilities, in government, and in employment. It ensured the right
to vote, provided relief against discrimination and authorized the attorney general to
institute suits to protect constitutional rights in public facilities and public education.
These provisions would extend to those suffering from unequal treatment due to SB 1070
– if they were being unfairly discriminated against due to their race. The question, then, is
what SB 1070 authorizes as grounds for “reasonable suspicion” for law enforcement
officials to stop and search people.

Racial profiling refers to the use of race or ethnicity by law enforcement officials as a
determining factor in deciding whether or not to target individuals for suspicion of crime.
The Fifteenth Amendment to the U.S. Constitution provides that “[t]he right of citizens of
the United States to vote shall not be denied or abridged by the United States or by any
State on account of race, color, or previous condition of servitude.” The Fourth and
Fourteenth Amendments also protect against racial profiling. The Fourth Amendment
prohibits unreasonable searches and seizures and the Fourteenth Amendment’s Equal
Protection Clause requires that all citizens be treated as equal under the law.
15

However, those who support the use of race as an element of criminal profiles argue that
racial profiling is merely good police work, in that it is reflective of racially disparate
crime rates. For instance, if criminal activity in an area is largely conducted by African
Americans, the police are justified in scrutinizing that segment of the population more
closely than others. The constitutional validity of racial profiling apart, racial profiling
has associated social costs. Randall Kennedy, a law professor at Harvard University,
asserts that racial profiling alienates members of racial minority groups of every social
stratum by adding to their resentment of the law enforcement establishment – a view
backed by the ACLU (Kennedy 1999).

Still, Kevin R. Johnson, dean of the University of California – Davis law school, points
out that accusations of racial profiling in criminal law enforcement, particularly with
respect to traffic stops, have long plagued the United States. He argues that the U.S.
Supreme Court in 1975 expressly encouraged racial profiling in United States v.
Brignoni-Ponce so long as the undefined “Mexican appearance” was only one of many
factors relied upon by authorities in making an immigration stop (Johnson 2010). But in
1999, the Ninth Circuit Court of Appeals, in United States v. Montero-Camargo, ruled
that “Hispanic appearance is not, in general, an appropriate factor” for determining
suspicion, especially in areas with large Hispanic populations (208 F.3d 1122; 2000 U.S.
App. LEXIS 6494). Therefore, there is some ambiguity as to whether race can be factor
in making an immigration stop or not.
16

The ACLU, the Anti-Defamation League and National Immigration Law Center, among
others, argue that SB 1070, even after being softened by HB 2162, allows and encourages
racial profiling in making decisions on whether to detain, search or inquire about a
person’s nationality or immigration status. It is important here to define racial profiling.
Racial profiling has been defined as “the reliance on race, skin color and/or ethnicity as
an indication of criminality, reasonable suspicion, or probable cause, except when part of
a description of a suspect, and said description is timely, reliable, and geographically
relevant” (Chin et al. 2010). So, for example, a policeman seeing an African-American
motorist driving through a white neighborhood late at night is not grounds for initiating a
traffic stop.

The original text of SB 1070 stated, “A law enforcement official or agency of this state or
a county, city, town or other political subdivision of this state may not solely consider
race, color or national origin in implementing the requirements of this subsection except
to the extent permitted by the United States or Arizona Constitution” (Arizona SB 1070
ch. 113 § 2, 2010). As revised by HB 2162, the relevant legislative language now states,
“A law enforcement official or agency of this state or a county, city, town or other
political subdivision of this state may not consider race, color or national origin…”
(Arizona HB 2162, ch. 211 § 3).

As Chin et al point out, removing “solely” from the text may expand rather than contract
the use of race in deciding whether to stop or inquire under the statute. If the amendment
17

was intended to prohibit race as a factor to be considered when making the decision to
stop or inquire about nationality and immigration status, the revised language should
simply have eliminated the final clause, which suggests that race may be considered “to
the extent permitted by the United States or Arizona Constitution” (Chin, et al. 2010).

Federal and state courts generally recognize that apparent race can be part of a reasonable
suspicion calculus for an investigative stop. In immigration proceedings, courts have
ruled that nationality may be considered. For instance, if the police were to learn that a
person was not born in the United States, that information could be used as evidence of
the person’s immigrant status. Chin et al argue that SB 1070 might actually require
racial profiling. SB 1070 prohibits restricting immigration enforcement to less than the
full extent allowed by federal law, and federal law permits race to be a “relevant factor”
in determining reasonable suspicion for stops and inquiries (Chin, et al. 2010). Thus, a
person who is Hispanic in appearance -- citizen of the state or legal resident-- and who
speaks Spanish in public is probably at great risk of being presumed to be an
undocumented immigrant and asked for his immigration papers. Three of 10 Arizonans
are Hispanic and 13 per cent are foreign born. It is likely that American citizens will be
victimized as a result of this law as much as documented and undocumented migrants.

The Center for American Progress (a nonpartisan, nonprofit, think tank based on
progressive ideas) argues that the law essentially legalizes racial profiling, putting
communities of color in the crosshairs by requiring state and local government workers to
18

determine if a person is illegally in the United States based on a “reasonable suspicion.”
They also quote San Francisco Police Chief George Gascon on SB 1070: “This is going
to be extremely difficult for police officers to follow without violating the law. [SB]
1070, in the way that it is written, is going to create a…difficult situation for police
officers because it will be very difficult not to use race as a predictor of bad behavior”
(Taking Action Against Arizona, 2010). Police will be forced to use race and physical
characteristics as a determinant instead of a descriptor of criminal intent as SB 1070
empowers any member of the public to sue police if they believe that the police is not
enforcing the law strictly enough. The ACLU calls SB 1070 a “show me your papers”
law and agrees with the Center for American Progress that the law encourages racial
stereotyping and profiling.

It has also been pointed out that even if HB 2162 is presumed to end before the last
clause, or even if that clause is eliminated in a subsequent amendment, two substantial
issues regarding race and “reasonable suspicion” would remain (Chin, et al. 2010). 1)
When expressly forbidden to consider something obvious, people are as likely to have
cause to consider that factor as not; and 2) Even if law enforcement officials were to act
in good faith and consider the implications of race, and the perception of race, in
determining whether to stop or inquire, it remains unclear as to what would mean in
practice.

19

A large part of the problem is the vagueness of the term “reasonable suspicion”. What
constitutes “reasonable suspicion” is at best ill-defined, and because the law does not
prohibit race or ethnicity as a determining factor in whether to stop or inquire, the
consequence, unintended though it might be, is a criminalization of colored people in
Arizona going about their daily activities. Marjorie Cohn of the Thomas Jefferson School
of Law says that SB 1070 unconstitutionally criminalizes “walking while brown” in
Arizona (Cohn 2010).
20

III. THE ECONOMIC ARGUMENT
SB 1070 and HB 2162 have both direct and indirect costs for the state of Arizona. States
that have plans to introduce or have already introduced copycat legislation, such as
Alabama and South Carolina, would do well to note how economically unfeasible it is for
them to implement such laws. The costs of additional law enforcement and the damage to
the economy of these states due to a reduction in the supply to cheap labor make such
laws expensive. Arizona has already spent over $1.5 million trying to defend a piece of
legislation whose constitutionality is in question.

The laws are costly because the state becomes controversial. Following the furor created
by SB 1070 in the national and international media, national organizations, celebrities
and opinion leaders organized and led a boycott of the state’s tourism and convention
industry. The Center for American Progress estimates that the cancellations ensuing from
this economic boycott will cost the state $253 million in GDP and a further $86 million in
wages over the next couple of years. The state has already lost $217 million in canceled
conferences. The Center also argues that the controversial law encourages people to
move out of the state as it is seen as inhospitable and warns that tax revenue would
decrease by as much as 10 per cent should the law work as policymakers intended and
reduce undocumented migration to zero, shrinking Arizona’s economy by $48.8 billion –
hardly affordable at a time when the state is among the hardest hit by the housing bust
and ensuing recession (Wolgin and Kelley 2011).
21

The other economic cost to be factored in is that these laws require significant resources
to be deployed by state and local governments to turn local law enforcement officials into
immigration officers. Not only would this have an adverse impact on their regular law
enforcement duties, the training would commandeer a substantial chunk of the state
budget. The laws are also a burden on small and medium business owners, who would
have to invest in costly immigration enforcement through the mandatory use of the
electronic employment verification system known as E-Verify. Also, SB 1070
compounds the effects of the state’s Legal Workers Act, implemented in 2008, which
requires employers to verify workers’ legal status with the national E-Verify system. The
Act has been successful in its intended purpose – to reduce the numbers of undocumented
migrants working in the state – but has also, according to the Public Policy Institute of
California, pushed a substantial number of such immigrants into informal employment
(Lofstrom, Bohn and Raphael 2011).

As the National Employment Law Project (NELP) points out in the case of other states
that have passed harsh local immigration laws, Arizona would probably face a costly
slew of lawsuits on behalf of legal immigrants and native-born Latinos who feel they
have been unjustly targeted, quite apart from the legal action the state is currently facing
from the federal government. As precedent, NELP observes that “in Riverside, New
Jersey, the town of 8,000 had already spent $82,000 in legal fees defending its ordinance”
by the time it was rescinded in September, 2007 (National Employment Law Project
2010). Also in 2007, the county supervisors in Prince William County, VA were
22

unwilling to move forward with the police enforcement portion of the immigration law
after they found that the price tag would be a minimum of $14 million for five years.
23

BUT WILL IT WORK?
SB 1070 raises several important questions about race, sovereignty, civil rights and
federal versus state power. In terms of bringing a contentious national issue to the
forefront, i.e. immigration, the framers of the law have had some success. They have also
succeeded in provoking a confrontation over preemption, if that was indeed their goal.
However, will SB 1070 succeed in substantively reducing the number of undocumented
immigrants entering Arizona? Will it be proven to have found a model for increased local
law enforcement involvement in immigration? Probably not. SB 1070 has faced
opposition from business, civil society and the federal government. Undocumented
migration has been shown to have little correlation with crime rates, so Arizona’s crime
rates in border towns and communities are unlikely to be affected significantly.
24

BIBLIOGRAPHY
Alba, Richard, Rubén G Rumbaut, and Karen Marotz. "A Distorted Nation: Perceptions
of Racial/Ethnic Group Sizes and Attitudes Toward Immigrants and Other
Minorities." Social Forces 84, no. 2 (2005): 901-920.
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Abstract (if available)

Abstract This essay is an examination of Arizona’s immigration law, the Support Our Law Enforcement and Safe Neighborhoods Act, better known as SB 1070. The law, signed in April 2010, re-ignited the debate over illegal immigration and brought it to national attention, especially as it has since inspired copycat legislation from Alabama, Utah and Georgia, among other. SB 1070 brings into focus the question as to how far a state can go on its own in its attempt to address the problem of illegal immigration. This essay examines SB 1070 as symptomatic of the larger trend of states challenging the federal government’s right to formulate immigration policy. It will also argue that SB 1070 and subsequent amendments are both unconstitutional and ineffective

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Asset Metadata

Creator Lohia, Yamini (author)

Core Title Preempted? the argument against Arizona's tough immigration laws

Contributor Electronically uploaded by the author (provenance)

School Annenberg School for Communication

Degree Master of Arts

Degree Program Specialized Journalism

Publication Date 04/26/2012

Defense Date 04/26/2012

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag Arizona,constitution,demography,immigration,Law,OAI-PMH Harvest

Language English

Advisor Suro, Roberto (committee chair), Parks, Michael (committee member), Wise, Carol (committee member)

Creator Email yaminilohia@gmail.com,ylohia@usc.edu

Permanent Link (DOI) https://doi.org/10.25549/usctheses-c3-13952

Unique identifier UC11289414

Identifier usctheses-c3-13952 (legacy record id)

Legacy Identifier etd-LohiaYamin-655.pdf

Dmrecord 13952

Document Type Thesis

Rights Lohia, Yamini

Type texts

Source University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Access Conditions The author retains rights to his/her dissertation, thesis or other graduate work according to U.S. copyright law. Electronic access is being provided by the USC Libraries in agreement with the a...

Repository Name University of Southern California Digital Library

Repository Location USC Digital Library, University of Southern California, University Park Campus MC 2810, 3434 South Grand Avenue, 2nd Floor, Los Angeles, California 90089-2810, USA