Joan Flocks: A starting place for understanding immigration reform

Joan Flocks

Joan D. Flocks is the director of the Social Policy Division within the Center for Governmental Responsibility at the University of Florida’s Levin College of Law. With bachelor’s master’s and a law degree from UF, Joan worked as an attorney for four years before returning to Gainesville to work with UF’s College of Medicine. She joined the College of Law in 2003.

In late May 2013, the U.S. Senate Judiciary Committee passed the Border Security, Economic Opportunity, and Immigration Modernization Act (S 744), which will, within several weeks, appear before the full U.S. Senate for consideration. The bill is a bipartisan, comprehensive immigration reform plan. In the United States, immigration reform has always involved highly polarized debate because of many competing interests.

The current bill is necessarily long and complex in order to survive its forthcoming journey that will be fraught with the twists and turns of compromise and renegotiation. It can be difficult for those not regularly involved with the issues to comprehend the current bill and to navigate the ongoing debate; it would be helpful if we could all at least start from the same place with some common points of reference. For this we need look no further than what we should have learned in school when we studied the United States Constitution.

The U.S. Constitution is both enduring and obliging. It has responded to public mandate at many moments of historical change. This is why it is the “Supreme Law of the Land,” the law by which “Judges in every State shall be bound,” according to Article VI.  Within the Constitution, the 14th Amendment, ratified in 1868 to protect African Americans emerging from slavery, is a good place to start when looking for reference points on how we protect certain groups of disenfranchised people in the United States.

A recent survey by the UF/IFAS Center for Public Issues Education reveals some public opinions among Floridians about immigration. The PIE Center survey revealed that 55 percent of respondents agreed with the statement that “immigrant parents have to be legal residents of the U.S. for their newborn child to be a citizen of the U.S.”  While this is a majority, it also means that almost half of the respondents do not know or do not believe that all infants born in the United States are citizens.

The protections offered by the 14th Amendment, begin with its first line, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The principle of “birthright citizenship” is based on the notion that persons born in a country establish the nation. The Supreme Court upheld and clarified the principle during the decades after the 14th Amendment was passed. Yet, controversy has resurfaced within the last 15 years, spearheaded by those who fear that birthright citizenship can encourage people to immigrate to the United States and have children in order to improve parents’ chances of attaining legal residency. Immigrant advocates dispute this speculation, stating that undocumented immigration is most often motivated by dire economic concerns, not a desire to obtain legal status through childbirth and that undocumented parents of citizen children are not granted special consideration based on their parentage. Despite the controversy, it is unlikely that birthright citizenship will be repealed, especially during the current immigration reform debate.

Also important in establishing protections for the disenfranchised are the Due Process and Equal Protection Clauses of the 14th Amendment, which state: “No State shall . . . deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These two clauses, as simple as they sound, have spurred decades of Supreme Court interpretation through distinct evolving lines of cases. But the clauses have at least one important element in common – they both refer to rights inhered by “any person.” Any person ncludes undocumented immigrants, not just citizens and residents. In the past, parties have tried to argue that undocumented immigrants should not be considered to be within the jurisdiction of a state, because they are not legal. But the Supreme Court struck down this argument in Plyler v. Doe (1983), a case involving a Texas statute denying funding for education to undocumented immigrant children. In that case, the Court found that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

Thus, a state cannot treat a person illegally, just because it is suspected that they are “illegal.” Although individual discrimination – a person’s personal prejudice – is not illegal, discrimination at an institutional level is illegal. The PIE Center survey reveals that only 39 percent of respondents agreed or strongly agreed with the statement, “Undocumented immigrants should not be discriminated against.” As early as 1886, in Yick Wo v. Hopkins, the Supreme Court held that a law that that was race-neutral on its face, but administered in a prejudicial manner against Chinese immigrants was an infringement of the Equal Protection Clause. Despite subsequent decades of the “separate but equal” doctrine and Jim Crow laws in the South, the Supreme Court eventually came back around to the sentiment in Yick Wo. In Hirabayashi v. United States (1943), the Court held, “Distinctions between citizens solely based because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.”

The ability of the federal government to set and regulate immigration policy, and avoid the potential for unconstitutional treatment of disenfranchised groups, is of such importance that that the Supreme Court has very recently taken a stand against states who try to pass their own immigration legislation. In 2012, the Supreme Court rejected most of Arizona’s restrictive immigration policies in Arizona et al. v. United States. The Court harkened back to the federal government’s power described in Article VI, the Supremacy Clause, when it stated: “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. The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse.”

Some of the PIE Center survey results reflect public sentiment held during previous historical debates about immigration in that they appear to be influenced by the political and economic climates of our time. For example, 73 percent of the 507 respondents believe undocumented immigrants are a burden on the economy and 84 percent believe employers want to hire undocumented immigrants in order to pay lower wages. Historically, negative feelings about immigrants are strongest during times of domestic economic instability. The PIE Center survey shows that unemployed and part-time workers were more likely to believe that undocumented immigrants were a burden on the economy than those employed full time. As we consider immigration reform, it is important to remember that the political and economic climates are always shifting, but that the law we hope will soon be emerging may be around for a long time. Politics and our current economic situation should not be allowed to cloud the eventual product to the point that it becomes of no merit to anyone.

Thoughtful, rational, civic discourse is possible only if we have common points of reference. The US Constitution can provide us with some of these points. For starters, everyone who resides in the United States should be aware that persons born in United States are US citizens and that persons residing in the United States cannot be denied equal protection of its laws. The US Constitution is, at its essence, a humanitarian document. Hopefully, the immigration reform bill that eventually emerges after the upcoming months of political maelstrom will be worthy of our Supreme Law of the Land.

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