Bill Ong Hing

Between Two Americas

Philadelphia, San Francisco, Alaska and Vermont are among the 120-plus cities and states that have passed resolutions denouncing the Patriot Act as a "threat to fundamental rights." Yet Alabama, Colorado and Los Angeles County are seeking arrangements with the Department of Homeland Security to help enforce immigration laws, a precursor of things to come if the proposed federal CLEAR Act is enacted. (The CLEAR Act would require state and local police to enforce federal civil immigration laws. This means that local police would be charged with investigating students who have dropped from full-time to part-time status, individuals who have remained in the U.S. longer than the date on their tourist visa allows or businesses that have hired immigrants without legal papers.) In New York City, a coalition of elected officials, labor unions and community groups are pushing a proposal to extend the right to vote in local elections to lawful resident aliens; five towns in Maryland already allow non-citizens – even the undocumented – to vote in local elections. But in California where the plot to introduce the "son of Proposition 187" has been hatched, one of Arnold Schwarzenneger's first acts as governor was to cancel the right of undocumented workers to drivers' licenses.

The bi-directional actions of state and local entities is emblematic of the two Americas in which we live. Both begin with the understanding that America is a land of immigrants. One America has embraced the notion of welcoming newcomers from different parts of the world, although depending on the era, even this more welcoming perspective may not have been open to people from certain parts of the world or of different cultural and ethnic backgrounds. The other America has remained largely mired in a Eurocentric (originally western Eurocentric) vision of America that idealized the true American as white, Anglo-Saxon, English-speaking and Christian. For the most part, this America has opposed more immigration, especially from regions of the world that are not white or supportive of our brand of democracy. So even though we are a "land of immigrants," we are also a land that has debated immigration policy since the revolutionary period.

Local efforts to control immigration generally are considered unconstitutional. At first, the U.S. Supreme Court permitted state laws and local ordinances that targeted immigrants of color to stand. Those laws generally were intended to make life challenging for those immigrants. For example, California's foreign miners tax was first aimed at Latin migrants, then Asians. And California's infamous alien land law of 1912 (mimicked by other states and upheld by the Supreme Court in 1923) targeted all Asian immigrants – especially Japanese and Indians who had become successful farmers. In several parts of the country, Asian Americans, like blacks, were forced into segregated school systems under the country's apartheid-like "separate but equal" principle (again upheld by the Supreme Court in 1927). A noteworthy exception to the Supreme Court's early deference to states' rights in the immigration field was in Yick Wo v. Hopkins (1886), where the Court struck down San Francisco's 'no wooden laundries' restrictions aimed at Chinese on an economic rights principle.

The Supreme Court had long recognized that the Constitution granted the federal Congress virtually unlimited ("plenary") power over the admission and exclusion of immigrants. Eventually the Court expanded that concept by holding that Congress had preempted the field, leaving the states without authority to enact laws that smacked of regulating immigration. Thus, the Supreme Court disapproved of alien land laws and fishing license restrictions in cases brought by Japanese Americans in 1948. The Court even threw out state attempts to bar lawful resident aliens from becoming lawyers or practicing other professions that required licenses. The Court did eventually carve a big exception to this line of cases, permitting states to require citizenship for "public functions" occupations, such as highway patrol officers and public school teachers. In Doe v. Plyler (1982), the Supreme Court also struck down Texas' early version of Proposition 187 that attempted to exclude undocumented alien children from public schools. Interestingly, the Court did not use a preemption theory to strike the law, relying instead on a common-sense, equal-protection notion that not educating children was a self-defeating, short-sighted public policy.

So how would the courts look at the recent rash of state attacks on immigrants? A state that elects to deny drivers' licenses to undocumented adults or in-state tuition benefits to undocumented college students might be challenged on a Doe v. Plyler theory, but it's doubtful that the current Court would agree that those actions are bad public policy. On the other hand, states that wish to extend such rights are within their rights. States can grant greater rights but not fewer rights to immigrants than the Constitution might require. So if a state wants to grant in-state tuition benefits for undocumented students of college age or voting rights to immigrants, it could do so even though the U.S. Constitution might not require that. The constitutionality of the proposed CLEAR Act raises different questions. The courts would have to decide whether the federal government can force the state government (and its police) to enforce federal laws. The answer is not a clear "yes," because a serious separation of powers question arises that could go either way.

In the end, the controversy remains over which America we wish to live in: the one that demonizes immigrants or the one that doesn't.

The truth is that state and local policies that reach out to try to incorporate newcomers – documented and undocumented – are in the best interest of society. When it comes to the integration of immigrants and refugees, state and local governments should help lead the way. Immigration and naturalization policy is largely in the hands of the federal government. However, while federal policies determine how many immigrants and refugees enter the country, state and local governments directly face the challenges and opportunities that newcomers present. In this sense, "integration policies" are largely in the hands of the state governments. The states have a strong interest in promoting integration given the demographic changes that are taking place throughout the country. By investing in newcomers and encouraging them to participate in civic life, the social and human capital they represent infuses energy into all aspects of our society.

The country's continued prosperity is dependent on the opportunities and achievements of all its residents. All of us benefit when immigrants are successful. Conversely, when immigrants are trapped in poverty and isolation, we all bear a higher burden. Our goal should be to support the ability of all residents, including immigrants, to be safe, healthy and law abiding, as well as live in affordable housing and be economically self-sufficient. Immigrants should participate in self-governance and feel they belong and are responsible to their community. The state should also try to influence federal policies to better align federal immigration practices with community goals. The reason is clear. Public policies that hinder immigrants' ability to become self-reliant, responsible community members hinder the success of all Americans. State and local policies should be about reaching out to immigrants – not demonizing them – because we are all in it together.

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