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The legislative log jam in Congress has been brutal.  Since the administration of President George W. Bush, the anti-immigrant establishment has stymied every attempt to enact comprehensive immigration reform. During the same period, nativists have conducted a drive in the states to re-write legislation and make Latino immigrant’s life exceedingly difficult.  In the words of the state legislation’s principal author, Kansas Secretary of State Kris Kobach, its goal was “attrition through enforcement.”  Translated it meant that if you made life miserable for immigrants they would “self-deport.”  The archetype of this state legislation was to be Arizona’s SB 1070, written to avoid the constitutional pitfalls that had sunk California’s Proposition 187 and Hazelton, Pennsylvania’s local ordinance before it.

Now President Obama’s administrative directive has effectively stepped over the congressional stalemate. It will halt the deportations of undocumented immigrants under thirty who were brought to the United States when they were young.  Further, the Supreme Court’s decision in Arizona’s S.B. 1070 has once again re-set the parameters for state legislation. The Supreme Court’s decision itself called for further action by these contending forces, and a new situation has emerged. Among the competing forces count the Tea Party movement: within minutes of the court’s decision on the Arizona statute, Tea Party websites, email lists, and discussion forums were abuzz with talk of the ruling.

The Supreme Court Decision on SB 1070

A majority of the Supreme Court, 5-3, ruled that three out of four sections of Arizona’s SB 1070 were unconstitutional.  The court has nine members and Justice Kagan recused herself from the decision because she had been Pres. Obama’s Solicitor General when the federal government filed suit against the Arizona law.  

The decision overturned sections of SB 1070 that criminalized one’s presence in Arizona without documentation, criminalized working or looking for work without legal status, and permitted police to arrest people without a warrant if there’s suspicion that they’ve committed a deportable crime. The court’s majority found that these parts of the statute invaded the federal government’s exclusive prerogative to set immigration policy. A number of legal analysts noted that the ruling likely means that the Court will rule similarly regarding anti-immigrant laws in Georgia, Alabama and elsewhere.

The Court’s decision on Section 2(B), which required local law enforcement to check a person’s immigration papers during an otherwise lawful detainment, was more complicated, however.  Writing on behalf of Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, Justice Anthony Kennedy wrote,  "The nature and timing of this case counsel caution in evaluating the validity of [Section] 2(B)," noting that the law has not yet gone into effect. Because "[t]here is a basic uncertainty about what the law means and how it will be enforced," the majority chose to allow the law to go forward, but made clear that "[t]his opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect."

In others words, the justices found that this section of the law—unlike the other parts—was not, on its own, attempting to supersede or support federal policy.  The court deemed it premature to block that provision of the law.  The majority decision did, however, leave open the possibility of another challenge to its constitutionality after it goes into effect.  And that is exactly what immigrant rights advocates and civil libertarians expect to do once the law goes into effect. 

The Anti-Immigrant Establishment Responds to the Decision

The Federation for American Immigration Reform (FAIR) and NumbersUSA tried to put the best spin possible on the court’s repudiation of much of a law they had supported. FAIR, for instance, clung to Section 2(B) of the law, arguing that it was the core of SB 1070, and that “the Supreme Court made it clear that federal immigration law allows states to require its law enforcement officers to conduct immigration status checks.”

Kris Kobach, the legal counsel for FAIR’s Immigration Reform Law Institute who currently serves as the Kansas Secretary of State, helped draft the anti-immigrant law. In an interview with Time, Kobach called the Supreme Court decision a “qualified victory” declared that the impact “will be felt in the other 49 states.” He also noted that he expects to see efforts in Kansas to pass more anti-immigrant legislation.

SB 1070 and Tea Party Nativism

As IREHR noted in the Special Report, Beyond FAIR, the Tea Party movement has become one of the dominant factors in anti-immigrant politics. Five of the six national Tea Party factions previously supported S.B. 1070. Regarding the Supreme Court’s decision on the law, however, the immediate reaction was mixed.  The three factions most intimately involved in national politics–FreedomWorks, Tea Party Express, and the Tea Party Patriots—avoided comment on the SB 1070 ruling. They are all in the middle of organizing a response to the Court’s ruling on the Affordable Care Act, what they call “ObamaCare.”

That hasn’t stopped local Tea Party Patriots chapters or local FreedomWorks activists from chiming in, however.  Similarly, the three national networks least tethered to electoral politics–the 1776 Tea Party, Patriot Action Network, and Tea Party Nation–have all pounced on the issue. As a consequence, IREHR’s analysis of this situation looks at each faction separately.

Tea Party Patriots

At Tea Party Patriots headquarters, the Arizona ruling caught them a bit flat-footed.  All of their energy and resources have been directed at preparing to mobilize Tea Party ranks around the Supreme Court’s impending ruling on the Affordable Care Act. The organization was planning rallies, a teleconference, and much more after the Court hands down its decision on the health care law. It is important to note, however, that Tea Party Patriots had been big supporters of SB 1070. They held multiple “We Stand with Arizona” events supporting the law, and chose the site of their 2011 national conference to support the law.  They made support for the country’s most draconian anti-immigrant law a part of their national work.

Many of the local Tea Party Patriots chapters, however, have spoken out on the issue. The Greater Phoenix Tea Party Patriots, for example, organized a rally on the steps of the state capitol the morning of the decision.  In another instance, Georgia Tea Party, Inc., a local chapter of Tea Party Patriots, organized a meeting on June 28 featuring nativist activist D. A. King to speak about “recent immigration events.”

King is a longtime anti-immigrant activist.  He heads a group known as the Dustin Inman Society.  He is also a contributor to the white nationalist website VDARE, has made racist comments about immigrants for years. In April 2007, for instance, King told a Newton County (Georgia) Republican Party meeting that undocumented immigrants are “not here to mow your lawn – they’re here to blow up your buildings and kill your children, and you, and me.”

In a July 2004 article, he wrote, “We have become sadly acquainted with the absolute and brazen disregard for the law that comes from the third world horde that is allowed to swarm over our border with Mexico…It is clear that when the mostly Mexican mob illegally ‘migrates’ into our nation, it brings with it the culture of lawlessness and chaos that is responsible for the very conditions that they flee in the rapidly deteriorating example of Democracy without the rule of law that is Mexico.”

After considerable feedback from the local chapters, on June 26 the Tea Party Patriots eventually got around to reacting to the Obama administrative directive on young undocumented immigrants. The organization’s website expressed interest in supporting H.R. 5953, the "Prohibiting Back-Door Amnesty Act" introduced by Congressman Ben Quayle.


Of all the national Tea Party factions, FreedomWorks was once the Tea Party least entangled with overt bigotry, as IREHR noted in the 2010 special report, Tea Party Nationalism.  At the time, FreedomWorks was the only faction that had not jumped on to the nativist bandwagon and supported Arizona’s SB 1070.  As a result, other Tea Party groups attacked Dick Armey, the chair of FreedomWorks, for being “soft on immigration.” In February 2011, FreedomWorks turned 180 degrees on the issue.  They launched a new FreedomConnector website, which opened the floodgates to nativist activity. FreedomWorks promoted dozens of anti-immigrant Tea Party events in 2011.

On the SB 1070 ruling, some FreedomWorks activists pushed the envelope.  As an example, W.H. (Bill) Stewart, a local FreedomWorks activist in Meriden, Connecticut saw the decision as a rationale for secession. He wrote on the aforementioned FreedomConnector website: “Many States today are talking about putting their Militias into service to protect their States People and of the upcoming disaster. Even some like Wyoming and Utah are talking about succeeding[sic] from the Union….to protect their Sovereignty and their people form[sic] Washington. So, what’s next for Arizonian, New Mexico and Texas and others, should they also think about Succeeding to put an end to Washington’s overzealous impedance to States Rights and Sovereignty.”

Patriot Action Network

The Patriot Action Network led much of the Tea Party charge to support SB 1070 in 2010. The group held rallies around the country, circulated petitions, and organized a national Support Arizona campaign. In the wake of the SB 1070 ruling, the group plans to make nativism a significant part of its national program this year.  Their initial analysis was somewhat balanced. Patriot Action Network national director Darla Dawald emailed supporters within minutes of the ruling,, “The Supreme Court upheld a key part of Arizona’s tough-immigration law but struck down others as intrusions on federal sovereignty, in a ruling that gave both sides something to cheer in advance of November elections where immigration is a major issue.”

1776 Tea Party

The national Tea Party faction run by leaders of the nativist vigilante Minuteman Project, the 1776 Tea Party, chose to see a silver lining in the court’s decision.  The leaders highlighted the success of Section 2 (B). At the same time, many of the posts on the group’s social networking site, fused anger over the court’s ruling on Arizona’s law with a push for contempt charges against Attorney General Holder.  They believed a vast conspiracy of government corruption was at work.

Tea Party Nation

While Tea Party Nation founder Judson Phillips initially released a muted response to the ruling, he later wrote to Tea Party Nation supporters: “the Obama regime, aided and abetted by five people in little black dresses, helped the United States commit suicide.”

The Tea Party Nation website also highlighted an article by Tea Party activist KrisAnne Hall, an attorney fired from the North Florida State Attorney office after defying an order to stop her high profile Tea Party speaking. Of the  SB 1070 decision, Hall wrote on the Tea Party Nation site, “Not only is this ruling devoid of any appeal to the Constitution, it is very dangerous.  It is an aberration of fundamental Constitutional principles and a brazen assault on state sovereignty!”  

Similarly, Tea Party Nation activist James Herbert Harrison wrote, “If a president gets by with this blatant dereliction of duty, what comes next? Would it be shocking for a future president to announce that no citizen of a non-white race will be prosecuted for violating election laws? Why not have a president announce that persons of a certain race between the age of 55 and 65 would not be prosecuted for Medicare fraud? How about college students who owe student loans will exempt from registering for the draft? What will law-abiding, tax-paying Arizonans be thinking about now? They’re paying the same substantial federal taxes as citizens in other states. Constitutionally, protecting the national border and assuring our soveranty[sic] is the number one function of the federal government. At what point do they refuse to pay federal taxes?”

The variety of the initial response to the court’s decision by Tea Partiers will certainly morph over time, particularly as lines are drawn in the states, pro-and anti-immigrant rights.  But the racialization and intensity of those emotions is not likely to diminish.  Instead, these feelings are more likely pose a greater danger to human and democratic rights.

“There is the real possibility that, even though much of the Arizona law was struck down, anti-immigrant force will find ways to use the remaining powers as the lever with which to enact their larger state agenda of intimidation, according to Melinda Lewis a long-time immigrant rights advocate in Kansas and a specialist in state policy. “Kobach will use the decision as a guidepost for what the nativists can do in the states.”

Ms. Lewis added, “the meaning for immigrant right advocates and organizers of the decision on Arizona’s law is that they can no longer rely on the “unconstitutionality” argument.  Instead of arguing the merits of the case—that immigrants should be treated fairly, well-educated and remain un-abused by law enforcement — many advocates have in the past taken the “easy way out,” and argued that only the federal government can make and enforce immigration law.  Even here in Kansas, we know that there will be more momentum around the police enforcement provisions, because the potential unconstitutionality loomed as a doubt in the minds of some who are certainly not committed to immigrants’ rights.”

“We’re going to face a pretty tough legislative session in 2013,” she said.

Devin Burghart

Author Devin Burghart

is vice president of IREHR. He coordinates our Seattle office, directs our research efforts, and manages our online communications. He has researched, written, and organized on virtually all facets of contemporary white nationalism since 1992, and is internationally recognized for this effort. Devin is frequently quoted as an expert by print, broadcast, and online media outlets. In 2007, he was awarded a Petra Foundation fellowship. more...

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