From a national perspective, arguably the most intriguing issue arising out of the Arizona immigration law controversy is whether other similarly situated states might feel compelled to take action in the absence of Congress passing balanced and effective comprehensive immigration reform.
A recent CBS/New York Times survey indicates a majority of Americans support Arizona's immigration law. Another poll indicates 70 percent of Arizonans support the law even though 53 percent think it might lead to civil rights violations and promote racial profiling.
Taken together, these polls suggest Arizona is not an outlier and the state's now infamous law is symptomatic of frustration resonating in states experiencing high levels of uncontrolled migration, exacerbated by a sluggish economy.
Yet calls for boycotts are ringing out from around the country and virtually anything identified with Arizona seems to be at risk. Arizona Iced Tea, a company based in New York, was quick to assert its East Coast roots when it appeared as though it might fall victim to corporate profiling by some concerned that Arizona's immigration law would promote racial and ethnic profiling.
During the summer of 1994, Democratic Florida Gov. Lawton Chiles took decisive action in response to a mass migration of thousands of Cubans and Haitians bound for Florida in virtually anything that would float. He declared a state of emergency and directed the Florida Highway Patrol to prepare for a possible quarantine of the Navy base in Key West where many were brought ashore by Coast Guard vessels and screened by the then-Immigration and Naturalization Service to establish identity, health and criminal history.
Chiles concluded that the INS was overwhelmed. Processing seemed perfunctory. Some people were released into Florida communities with little or no support or accountability. Chiles was determined to prevent another Mariel boatlift fiasco, the exodus of an estimated 125,000 Cubans to Florida from Cuba's Mariel harbor in 1980, including an undetermined number suffering from mental illness and criminals released from Cuba's jails.
The governor's unconventional strategy prompted Clinton administration officials to change longstanding federal policy that constrained its initial response. A burgeoning humanitarian crisis was averted.
Chiles implemented a broad range of immigration initiatives during the 1990s to minimize the burden that Florida taxpayers shouldered attributable to the federal government's failure to adequately enforce immigration law.
These initiatives included a landmark agreement with INS to expedite the deportation of approximately 500 nonviolent criminal aliens incarcerated within the Florida Department of Corrections for state convictions, which ultimately avoided millions of dollars in incarceration costs. (For a detailed summary of Chiles' immigration initiatives visit: www.lawtonchiles.org and click on "Governor Years.")
During the fall of 1994, California passed Proposition 187, a ballot resolution to prohibit undocumented foreign nationals from accessing health care, public education and other social services. Republican California Gov. Pete Wilson signed executive orders to implement the measure. Chiles opposed similar measures in Florida. Federal courts intervened. Proposition 187 was overturned.
It is well established under the U.S. Constitution that only Congress can pass laws regulating immigration. The federal government is responsible for the enforcement of immigration law, and federal courts have exclusive jurisdiction over immigration matters. Generally, federal law pre-empts conflicting state law.
While border security and enforcement have received increased emphasis during the administrations of Presidents Clinton, Bush and Obama, challenges associated with securing the Southwest border are daunting and the goal has been elusive, which raises numerous national security concerns. Moreover, the federal government's overall enforcement of immigration law has been, at best, uneven and at times misplaced over the years.
Irrespective of the Arizona's immigration law's constitutionality, until Congress passes comprehensive immigration reform there may be times and circumstances that call for governors from states experiencing high levels of uncontrolled migration to take action. The challenge will be to act responsibly.
Mark Schlakman is a lawyer and senior program director at the Florida State University Center for the Advancement of Human Rights. He served as special counsel to Gov. Lawton Chiles and later as senior adviser to Gov. Buddy MacKay when the governor was President Bill Clinton's special envoy for the Americas. He was a consultant/special adviser to Bush administration USCIS director Emilio Gonzalez from '07 to '08.