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States Taking Matters into Their Own Hands

This article is part of a Special
in the August/September 2011 print issue of PA TIMES. Contact Editor
Christine Jewett McCrehin ([email protected]) for more information on
the print issue. See the Related Articles box for links to more articles from the Special Section.

Daniel G. Bauer, Alex Roman, Adam Williams

Immigration has become an important issue in recent years on the political agenda mainly due to the perception of a growing number of illegal aliens making their way into various parts of the country. Federal legislation has not taken a stance which would be considered satisfactory for many state and local governments. The resulting backlash found in lower level governmental policies on immigration have led to an even greater sense of awareness from the general public. Questions must now be asked of administrators and the field of public administration in general, regarding the future effects of these policies.

Also known as the Support Our Law Enforcement and Safe Neighborhoods Act, Arizona Senate Bill 1070 was seen by many to be the strongest piece of immigration legislation in the modern era. The bill states it seeks “attrition through enforcement.” Under such a general principle, Arizona lawmakers were able to effectively allow for profiling efforts of law enforcement officers within the bounds of reasonable suspicion for the purpose of detentions or arrests.
Furthermore, the bill operates under the assumptions presented by federal laws which require aliens over fourteen to obtain registration documents if they are to remain within the United States for an extended period of time. Officers enforcing the guidelines of Arizona SB 1070 are asked to ensure all persons questioned possess some form of that documentation. Overall, this became questioned as a result of the overly lenient–and obviously ambiguous–nature of the wording regarding reasonable suspicion. However, the bill, which has been passed into law for over a year, now has given rise to other states to take action.

On September 1, 2011, House Bill [HB] 56 is set to take effect in Alabama. Similar to SB 1070, HB 56 grants law enforcement officers the right to perform searches when they suspect the possibility an individual may be an illegal alien. Furthermore, strict penalties would be enforced for transporting, harboring, or employing illegal aliens. It continues by going beyond the scope of SB 1070 to include birth certificate verifications for students attempting to enroll in public schools and also e-verifications by employers with regards to an individual’s immigration status.

Most agree this has surpassed SB 1070 as being the toughest law on immigration. HB 56, along with bills from Georgia, Arizona, Utah and Indiana have now cause the Obama administration to take action by filing law suits in order to attempt to block the enforcement of these provisions. There are several significant implications for public administration practice that come with these types of policies.

First, from a holistic perspective the legislature legitimizes and encourages high levels of discretion in action and decisionmaking by street-level bureaucrats. The implications of the ability of street-level bureaucrats to do politics and make policy through their interpretations of the rules has become an accepted part of administrative process since Michael Lipsky elegantly pointed it out in his seminal Street-Level Bureaucracy: Dilemmas of the individual in the Public Service published in 1980. However, at no point in time over the last six decades have street-level decision-makers had a legal and official endorsement of the ability to exercise their power of discretion and interpretation specifically within immigration matters. Are the administrators educated, trained and prepared to implement the policies while maintaining a genuine concern for democratic prerogatives?

Secondly, unlike a manifold of other administrative dilemmas faced by the states and federal government, the effects of immigration law are not bound by state or national boundaries. On one hand if one is to assume an approximately rational behavior on the part of the illegal immigrants one could argue that they would migrate to other more favorable states. Thus in essence the legislation would not solve the problem at the national level would simply make it some other state’s problem.

On the other hand it is also possible that this would lead to a more desperate behavior on the part ot the illegal immigrants, thus worsening the problem the legislature was to intended to address. Should the states fall into domino-type policy diffusion dynamics it would probably force the federal government to finally comprehensively address the issue. The manner in which the states are attending to this matter does not bode well with the American international political narrative.

An overview of the present landscape as well as both the intended and unintended consequences of the proposed Alabama immigration legislation reveals that several states and nations are seeking legal action within the judicial system of the United States. The majority of Central and South American countries, including Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Paraguay, Peru, Uruguay, and the North American Free Trade Agreement partner; Mexico, have filed briefs against Alabama immigration legislation. The wish of all 16 foreign nations, at this time, is for a cohesive national law pertaining to immigration and not 50 laws. Such legislation as Alabama’s compromises the value of community not only within the borders of Alabama but also the contiguous states near Alabama. Moreover, other national groups such as the Roman Catholic Church as well as others are seeking remedial actions within the American legal jurisdictional frameworks.

The theoretical principles of rational public choice, value of community, and even transaction costs born out of the policing efforts emanating from enforcement of the immigration legislation will push the state budget further into a fiscal deficit position. Finally, collaborative trade governance will be severely compromised at a time when economic recovery is precariously perched. Both transparency and accountability are jeopardized when the program evaluation for the proposed immigration legislation excludes such externalities. All Americans will bear the burden as well as the unintended consequences born out of such legislation at some point in time and place.

It appears that states are attempting to address a serious dilemma with unsophisticated, rush and rhetoric driven policies. The real question is whether expected benefits from such immigration policies will ever overweight the long term direct and indirect costs? Would these policies achieve anything other than a transfer of the burden to other states? While there seem to be significant short term political gains from such moves one is left to wonder if the administrative implications and costs of such approaches have adequately been thought through.

ASPA members Adam Williams, Daniel G. Bauer and Alexandru V. Roman are doctoral students at Florida Atlantic University, School of Public Administration. Emails: [email protected]; [email protected] and [email protected]

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