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Danger Ahead?: Why America's Governors are Declaring States of Immigration Emergency and Why Congress Should Listen, and Act


Tuesday, Sep. 06, 2005

During the past two weeks, the world has watched a state of emergency unfold in the southern part of the United States as a result of Hurricane Katrina, and the ensuing chaos.

A few weeks before that storm devastated Louisiana and Mississippi, though, and a thousand miles to the West, the governors of New Mexico and Arizona were declaring a different type of emergency. Their warning was about immigration. And the situation of which it warned, was the direct result of the combination of America's chaotic immigration policy and Congress's foot-dragging in carrying out its Constitutional responsibilities in this area.

In this column, I will argue that Congress and the White House should take heed of these governors' warnings, and should take action on carrying out a comprehensive immigration reform package. I will also suggest the major components such a package ought to include.

New Mexico and Arizona Declares a State of Emergency

On August 12, New Mexico's Governor Bill Richardson declared a state of emergency in several counties on the Mexican border. What prompted him to do so, he indicated, was a combination of illegal immigration and related crime.

Governor Richardson, as the source of the authority for his action, referred to the Constitution and Laws of the State of New Mexico

Richardson's declaration made $750,000 in state emergency funding immediately available to the affected counties. He also promised an additional $1 million to the region -- to support state and local law enforcement efforts, and create and fund a field office for the New Mexico Office of Homeland Security to coordinate assistance to the area. That funding will also help build a fence to protect property near a frequently-used pathway for illegal immigration, where a number of livestock have been stolen and killed.

And, in a move that seemed to be shading into international diplomacy, Richardson also called on the Mexican government to bulldoze the abandoned town of Las Chepas, which is directly over the border, and which has been a stopping off point for smugglers.

Richardson said that he was forced to take such steps because of the urgency of the situation "and, unfortunately, because of the total inaction and lack of resources from the federal government and Congress."

Arizona Quickly Follows Suit - Declaring Its Own State of Emergency

Two days later, on August 14, Arizona's Governor Janet Napolitano declared a state of emergency, for the same reasons, in four of her own state's southern border counties.

In Arizona, Governor Napolitano cited state law specifically defining a state of emergency as "the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons or property within the state."

Such conditions, according to the law, may be a result of various kinds of natural disaster, but also may be ascribed to "other causes." The standard for the Governor to declare a state of emergency is that the conditions at issue "are likely to be beyond the control of the services, personnel, equipment and facilities of any single county, city or town, and … require the combined efforts of the state and the political subdivision."

Like Richardson, Governor Napolitano also castigated the federal government for failing in its responsibility to secure the U.S./Mexico border, thereby necessitating rapid action by Arizona to provide support to its border counties.She directed that hundreds of thousands of dollars from Arizona's general revenue be made available to the Director of the Arizona Division of Emergency Management to address the problem.

Napolitano cited the rise in illegal border crossings, as well as the related increase in deaths, crime and property damage, to justify her declaration of a State of Emergency. She drew attention to the seriousness of the problem, noting that since Oct. 1, 2004, 510,000 people trying to cross the border between Yuma and Tucson have been arrested -- nearly 1,600 a day. That's an extraordinary number, and a burdensome cost for local and state government.

At the end of August, a locality added its voice to Napolitano's. The Cochise County Board of Supervisors in southern Arizona passed a resolution declaring - without any "sunset" date - an ongoing local emergency arising from illegal immigration. (An Arizona statute authorizes a county Board of Supervisors to declare a local emergency when an emergency exists, endangering life or property within the county.)

"We are at ground zero for undocumented immigration into this country," said the Cochise County Board's Vice-Chairman. "This emergency declaration is a clarion call to the Federal government to assist our County's economic and emotional burdens."

Such local actions are smart politics. Similarly, local resolutions against the USA PATRIOT Act drew needed attention to the Act's incursions on civil liberties. (Currently, such resolutions have been passed in 390communities in 43states. Seven resolutions are state-wide. According to the ACLU, these resolutions represent the views of approximately 62 millionpeople.)

Then, last Friday, as if to underscore Napolitano's and Cochise County's concerns, a spokesman for U.S. Customs and Border Protection in Washington said that a record 415 people have died trying to cross the U.S. border illegally from Mexico into Arizona and Southern Texas in the past 11 months. That figure surpassed the previous high of 383, recorded in FY 2000.

Virginia and California, Too, Have Taken Action on their Immigration Issues

New Mexico and Arizona, meanwhile, are not alone in their cry for help - or their decision to take action. Even some in a non-border state, Virginia, are joining the cry. And border state California has been home to an intense focus on - and controversy over - immigration issues.

In mid-August, a Virginia state legislator called for the declaration of a state of emergency, based on what he termed the state's "growing illegal immigration problem." Although many of his colleagues disagree with this step, most agree that Virginia's -- and the nation's -- governments have to do more to address the growing number of immigrants lacking legal status who are arriving in their communities. (Governor Mark Warner has said that he does not favor such a move.)

Then, in late August, several Republican lawmakers introduced legislation that would give Governor Schwarzenegger the power to declare a state of emergency along California's Mexican border. The four want to give Schwarzenegger statutory authority specifically so that, if he so chose, he could declare an emergency based on illegal immigration. (California law currently allows the governor to call a state of emergency for events such as war, epidemics, natural disasters and "local emergencies," a category that is defined broadly, but it seems immigration - a state-wide issue - might not currently fall within the law, though particular emergencies near the border arguably could.)

Schwarzenegger praised Governors Napolitano and Richardson for issuing the emergency declarations in their states, and for diverting more than $3 million to fight unregulated border crossings. However, he also stated that California did not face a comparable problem - yet.

Why States Consider Illegal Immigration an Emergency: Skyrocketing Costs

Why do states worry so much about immigrants who come to the United States without obtaining legal status?

Many businesses actually benefit (albeit, often in a despicable way) from their presence. These include the many companies who pay undocumented workers at below minimum wage, and the landlords who can charge them inflated rent for substandard housing, and then fail to correct even serious property conditions, knowing that their tenants will never report them.

One major answer to why illegal immigration is a problem is that it creates a variety of costs - costs that will not be offset by immigrants' tax payments, for immigrants' lives are typically lived "off the books."

Illegal immigrants will often lack health insurance, and thus a state will incur costs when they end up in emergency rooms. Their children will likely attend public schools. And if a state tries to crack down on illegal immigration, that too is costly: The Arizona prison system alone spent almost $80 million housing undocumented immigrants last year. Finally, the labor market for low-wage workers may undercut the market for - and drive down the hourly wage of -- other, legal employees.

Another cost, now, is the cost of controlling vigilantism. Famously, this April, a private group of volunteers called "the Minutemen" was organized and "deployed" --ostensibly to enforce federal immigration law. Since then, Minuteman volunteers have "patrolled" sections of the Arizona-Mexico border.

(The Minutemen's harsh posture does not represent that of all Americans. Hundreds of volunteers with humanitarian groups such as No More Deaths, whose goal is to aid lost, abandoned or injured illegal immigrants, are helping those in need. Between June 13 and Aug 13, that group made 463 "assists" -- providing food, water, medical care and, at times, evacuation.)

The Governors May Have the Administration's Ear, But Little Action Has Been Taken

One of the reasons these state governors have opted to declare a state of immigration emergency is, of course, that the President has declined to do so.

Under the Stafford Act, the President has the authority to declare an emergency situation with or without a request from a state's governor but, certainly, a plea from a state governor ought to cause a president to carefully consider whether such a declaration is necessary.

Louisiana's Governor Kathleen Blanco wrote to President Bush on August 26 requesting that he declare an emergency for the State of Louisiana, due to the oncoming Hurricane Katrina. The President issued such a declaration on Saturday for Louisiana.

(Somewhat oddly, President Bush yesterday also declared Utah a state of emergency, opening up federal funding to house and feed approximately 600 evacuees flown into the state from the Gulf Coast. Utah is not the state hardest hit by America's refugees, but it is the home of the Secretary of the Department of Health and Human Services, who is a former Governor and close friend of the President.)

Typically, of course, the President's state-of-emergency declarations have been reserved for natural disasters, such as Hurricane Katrina. But, under the law, that does not always have to be the case.

A federal emergency declaration directs the Federal Emergency Management Agency (FEMA) to use its power to cope with emergency situations. But FEMA's presence is not the only result of such a declaration: Federal assistance also becomes available to areas that are declared to be in a state of emergency.

There's some evidence that the Administration has been paying some attention to these immigration problems - but not enough. Homeland Security Secretary Michael Chertoff recently - although, before Katrina hit-- stated that the federal government is beefing up its operations regarding illegal immigrants in response to the "rightly distressed" American public. Chertoff said that he intends to improve the deportation process so that overcrowded detention centers do not have to release undocumented immigrants; he also suggested other small administrative measures.

But that won't be enough. And broader assistance must come from Congress - for under the Constitution, Congress has total and completeauthority over America's immigration matters. The legislature is specifically charged with the power "To establish an uniform Rule of Naturalization."

What Congress Should Do to Address the Illegal Immigration Problem

On Capitol Hill, several plans are being passed around, although without much energy behind them.

Among the most widely-discussed is that of Sen. McCain (R -AZ) and Sen. Kennedy, (D- MA). They are sponsoring a bill that, among other provisions, would create 400,000 three-year visas for "guest workers." The bill would allow undocumented immigrants to remain in the United States while their applications for these visas are being processed.

A different plan by Sen. Jon Kyl, (R-AZ) would create two-year visas and would require undocumented immigrants in the US to leave the country before they could apply for the chance to work legally here.

Which is the better plan? Kyl's has the advantage of not "rewarding" those who have already arrived outside of the immigration system. But McCain and Kennedy's is superior overall, in my opinion, because it addresses reality: Many illegal immigrants are already here, and will not want to - or, given family and work commitments, be able to - leave the county before filing their visa applications.

In light of this reality, it's more realistic to allow those already here, to have a path to legalization, without fear of deportation. Perhaps an improved plan would combine aspects of both: The McCain/Kennedy rule could "grandfather" in those already here, if they apply for guest visas soon. But afterward, those who don't apply - or who immigrate here later, rather than applying for guest visas - could be required to leave the country before applying, as Kyl suggests.

Still, even with measures like these, illegal immigration - especially over the U.S./Mexico border - simply isn't going to stop. After all, its impetus is the same impetus that drew current citizens, or their parents, grandparents, or ancestors to America. The Statute of Liberty's motto doesn't say, "Give me your tired, your poor, but only if they enter legally."

People from Central and South America, and beyond, see the chance for a better life here. It's a life that includes employment opportunities, free and reasonably good public schools, freedom of speech and association, constitutional due process, and, for many, the chance to be reunified with family. Can they be blamed for breaking the law to get this life? Would we blame ourselves - or our parents, grandparents or ancestors - if they had done the same?

So what, realistically, can be done - beyond variations of the "guest visa" idea that the Kyl and McCain/Kennedy proposals put forward?

Some important components of a bipartisan, comprehensive immigration reform package might include: a plan to promote legal and orderly migration, provide a path to citizenship for undocumented migrants, improve immigration and labor law enforcement, and create new migration programs that will serve America's security, social, economic and humanitarian interests.

In addition, because that plan will take a while to carry out, the federal government should consider addressing the immediate and special needs of specific populations such as students, farm workers and others immediately.

Whatever Action Is Taken, Civil Liberties Must Be Preserved

If Congress acts, and it certainly should act, then it must be sure to preserve civil liberties, and resist the impulse for a "crackdown" on illegal immigration. It's a common misperception that our Constitution protects only U.S. citizens, or citizens and legal residents. That's not correct: It protects "persons" in the United States. (It arguably also protects --and in my view, should be interpreted to protect -- persons in U.S. custody abroad.).

And if Congress allows the federal authority vacuum to continue, and states feel compelled to step in, they too need to ensure that civil liberties of immigrants, including immigrants who have gone around America's patchwork system, are honored.

By comparison, Louisiana's Governor Blanco's declaration of a state of emergency gave authorities widespread powers to suspend civil liberties as they work to restore order and bring victims to safety.

Might a suspension of civil liberties be the next step in a state's efforts to deal with immigrants in their jurisdiction? What are the limits? If the federal government continues to let the states down, they may become all the more desperate, and may resort to harsher solutions. At the same time, vigilantism may increase, and may offer only a kind of "frontier justice" that is antithetical to U.S. ideals.

Plainly, hurricane relief operations - as well as the increasingly complex Supreme Court nomination process -- will preoccupy the nation, and Congress, for a time. But as soon as possible, legislators must increase their attention to comprehensively developing a sound immigration policy.

Southwestern states are sending the country - and our leaders -- a message. The federal government must take action.

Noah LeavittThe author, an attorney, teaches at Whitman College. He has previously worked for the U.S. Department of Justice in the Chicago Immigration Court. The views expressed here are his alone. Leavitt can be contacted at

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