Author of Arizona immigration law defends it in Senate hearing

In a hearing Tuesday, Sen. Charles Schumer (D) challenged Russell Pearce, champion of a controversial Arizona immigration law, to explain how racial profiling could be avoided under the statute. The US Supreme Court takes up Arizona's law on Wednesday. 

Sen. Charles Schumer confronted the author of Arizona’s tough immigration enforcement law on Tuesday, demanding to know how state and local officials could enforce the measure without engaging in illegal racial profiling of Latinos.

“What does an illegal immigrant dress like?” Senator Schumer asked during a hearing of the Judiciary Subcommittee on Immigration, Refugees and Border Security.

The New York Democrat cited an Arizona police training manual that said how a person dresses might provide reasonable suspicion that the individual is an illegal immigrant.

“Do illegal immigrants dress any differently than legal immigrants or American citizens?” Schumer asked.

The focus of his inquiry was Russell Pearce, the former Arizona Senate president who wrote and championed the controversial 2010 state law known as SB 1070.

“This is just a list of things to look for,” Mr. Pearce told the senator. It was one of many factors officers might consider before asking for identification, he said.

But doesn’t that lead to racial profiling? Schumer asked.

“Just the opposite,” Pearce said. “As a civil libertarian … I don’t want a police state.”

The exchange came a day before the US Supreme Court is set to hear oral argument in a case testing whether SB 1070 should be allowed to take full effect in Arizona or whether the state measure is preempted by federal immigration statutes and the enforcement priorities of the Obama administration.

The showdown at the Supreme Court marks the second time in a month that the high court will hear a major case asking the justices to weigh the proper balance of power between the federal government and state governments. Last month, the justices heard a case brought by 26 states challenging the authority of the federal government under the Constitution’s Commerce Clause to enact President Obama’s health-care reform law.

The Arizona case on Wednesday involves a different legal doctrine known as federal preemption. It is the recognition that federal law is the supreme law of the land and trumps any conflicting state law.

The Obama administration sued Arizona to block implementation of SB 1070, arguing that the law impermissibly intruded into the federal government’s exclusive authority to enforce immigration laws.

Lawyers for the state counter that SB 1070 is faithful to tough immigration standards written into federal law by Congress. They say it is the Obama administration that is selectively enforcing federal laws by focusing on finding and deporting convicted criminals while allowing other illegal immigrants to remain in the US.

The Judiciary subcommittee hearing was not aimed at examining issues of constitutional law. Instead, it became a policy debate, touching on many of the hot-button aspects of Arizona’s ongoing immigration controversy.

Five other states have enacted immigration enforcement laws similar to Arizona's.

Republican members of the subcommittee did not attend the hearing.

“The Supreme Court will decide the fate of Arizona’s SB 1070 on constitutional grounds. Yet none of the majority’s witnesses [at Tuesday’s hearing] is an expert on the complex questions the court will consider,” Sen. John Cornyn of Texas, the subcommittee’s ranking Republican, said in a statement. Schumer’s hearing, he said, was “no more than election-year theater.”

Schumer announced during the hearing that he is prepared to introduce legislation that would reverse any Supreme Court ruling upholding Arizona’s immigration enforcement law.

“I believe it is simply too damaging to our economy, and too dangerous to our democracy, to have 50 different states doing 50 different things with regard to immigration policy,” Schumer said.

“I also believe that Congress has already clearly and repeatedly indicated its intent to preempt states from creating their own immigration enforcement regimes,” he said, “which is why I believe SB 1070 and laws like it are unconstitutional.”

The high court ruling is expected to turn on the court’s view of whether Congress intended to preempt state efforts to assist in enforcement of immigration statutes.

Democrats generally support the president’s view that the executive branch retains broad discretion to decide enforcement priorities. Those priorities have preemptive effect on any states seeking to enforce other aspects of immigration law, they argue.

Republicans generally support Arizona’s position, that what matters is whether Congress intended to foreclose state enforcement efforts, not administration priorities or policies favoring selective enforcement of certain federal statutes and no enforcement of others.

Schumer mentioned several times that he invited a number of supporters of SB 1070 to testify at the hearing, and that all but one refused. “I’ll say this for Mr. Pearce, he was the only one who would come,” the senator said. “We reached out far and wide for those to defend the law and none would come.”

Pearce told the senator that he views SB 1070 as an attempt to uphold the rule of law as written by Congress. “I get a little bit disappointed that we are the bad guys for enforcing the law,” he said.

He added: “Mr. Chairman, we have a national crisis and yet we continue to ignore it. I think Americans are a little tired of the drive-by statements by our politicians.”

Schumer announced at the hearing that his proposed legislation would not only overturn SB 1070, but also an earlier Arizona law – upheld by the Supreme Court in 2011 – that requires employers to use the federal E-Verify system to ensure all potential workers are legally present in the US.

“Should the Supreme Court choose to ignore … plain and unambiguous statements of congressional intent and uphold SB 1070, I will introduce legislation which will reiterate that Congress does not intend for states to enact their own immigration enforcement schemes,” Schumer said.

“State officials can only engage in the detection, apprehension, and detention of unlawfully present individuals if they are doing so pursuant to an explicit agreement with the federal government and are being supervised and trained by federal officials,” he said.