The Road Not Taken: Supreme Court Decision on Arizona’s Anti-Immigrant Law Fails on Human Rights

The Supreme Court decision on Arizona's anti-immigrant law, while striking down harsher measures designed to make undocumented immigrants “self-deport,” still allows the police to demand that anyone suspected of being undocumented “show their papers” when stopped. From a legal perspective, the challenge to Arizona seems like a success for many, but for many communities the constant threat of deportation can make everyday life a harrowing experience. How could the Court, which recognized that the “history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here,” and that “immigration policy shapes the destiny of the Nation,” fail to consider the impact these policies have on the human beings who have to live under them? What if our legal system genuinely incorporated a human rights vision? How would this change the legal conversation? Although our response is not a comprehensive one, we think it worthwhile to reflect on the dramatic difference a human rights framework would make.

First, we would begin with the principle that all people are entitled to the full range of human rights, among them decent work, healthcare, education and housing, as well as the right to participate in making decisions about protecting these rights.  In describing the federal government’s authority to determine immigration law, the Court stresses the broad discretion exercised by federal immigration officials regarding, for example, immigration detention and deportation. In a system based on human rights principles, it would be simply impermissible for the government to exercise this unchecked power over countless lives without regard to fundamental rights.

Second, we would recognize that U.S. policies, rights concerns and obligations extend across borders.  The Court notes that immigration policy is a federal issue because of its potential effects on trade, investment, tourism and diplomatic relations.  Yet the Court does not acknowledge how U.S. policies regarding trade, investment, and foreign affairs—often supporting the interests of U.S. agribusiness—are important factors in the creation of the underlying economic and political conditions leading to undocumented immigration.  When the conversation begins with the false premise that undocumented immigration is simply the outcome of millions of individuals choosing to cross borders, it allows the U.S. to ignore its role in creating the conditions leading to the presence of millions of undocumented immigrants in this country, and it fails to provide a legal basis for protecting immigrants’ basic human rights once they are here. Similarly, the Court addresses the many reasons immigration officials might deem deportation inappropriate in an individual case—civil war; political persecution; “enduring conditions that create a real risk that the alien or his family will be harmed upon return”—without addressing the role – and harm to the human body and spirit – of long term, grinding poverty that U.S. policy helps create.   In short, addressing these issues within a human rights framework would require dealing with the massive elephant in the room: namely poverty, its causes and its outcomes–both abroad and at home.

Finally, if, as most rights advocates would agree, “show your papers” is an invitation to racial profiling, human rights standards would condemn it as a policy that has a disproportionate racial impact.  At a moment when public and legal consciousness is growing on the savage harm of “stop and frisk,” it shocks the conscience that our Supreme Court has left a door wide open for similar abuses to be imposed on our immigrant and Latino communities.  While we welcome the Court striking down the more directly punitive aspects of the Arizona law, it is no substitute for a serious conversation about and response to how our current policies and legal frameworks economically displace people, strip them of almost all rights when they cross borders and then render them vulnerable to severe exploitation while at the mercy of unpredictable immigration policies.