Fox Hypes AL Immigration Law Of Dubious Constitutionality

Crowley: Alabama Is “Saying ... 'Since The Feds Aren't Doing Their Job Now We're Going To Go And Have To Do It Ourselves.' ” From the August 2 edition of Fox News' The Five:

ERIC BOLLING (co-host): What happened in Arizona, what's going on in Alabama right now are two states who said, “Look, we're supposed to rely on you to secure our borders. You're not doing it so we're going to do it on our own.” I don't think the laws are that crazy. You're not allowed to hire an illegal. You're not allowed to transport an illegal. What's wrong with that?

[...]

MONICA CROWLEY (co-host): Let's talk about what these state laws actually say. Arizona and Alabama both enlisted top flight attorneys to take a close look at the federal law, and they drafted their state laws to run concurrently with the federal laws. So it's not like you've got 50 states out there running around making their own immigration law. They're saying, “We've now instituted state law. It's running parallel to the federal law -- doesn't encroach on federal powers at all -- but since the feds aren't doing their job, now we're going to go and have to do it ourselves.” And, you know, why isn't Holder then enforcing current federal law instead of suing states that belong to the United States?

ANDREA TANTAROS (co-host): If Democrats are so opposed to states actually trying to keep its citizens safe, then why not just repeal, Bob, the current law that's on the books making it illegal to come to this country? Just repeal it and we wouldn't have this problem.

[...]

TANTAROS: Do you think it's the best visual now with the way that the economy is going to have the Justice Department spending its time again suing a state? [Fox News, The Five, 8/2/11]

Like AZ Law, AL Law Includes Provision Requiring Police To Check Immigration Papers Of Anyone They Detain Whom They Suspect Of Being In The Country Illegally. From the Alabama law:

Upon any lawful stop, detention, or arrest made by a state, county, or municipal law enforcement officer of this state in the enforcement of any state law or ordinance of any political subdivision thereof, where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the citizenship and immigration status of the person, except if the determination may hinder or obstruct an investigation. [Alabama H.B. 56, accessed via Lexis]

Federal Judge Ruled That Similar Provision In AZ Immigration Law Likely Violated The Constitution. In her opinion in United States v. Arizona, which granted a preliminary injunction against sections of the law, Judge Susan Bolton found that the section of the law requiring law enforcement to check the immigration status of certain people they detained is likely unconstitutional. Bolton pointed out that the federal government had described several categories of lawfully present non-U.S. citizens who would not have sufficient “readily available documentation” to satisfy Arizona law enforcement that they are legally present in the country. Those categories include people from visa-waiver countries, people who have applied for asylum but have not had their cases heard, and people who applied for protection from domestic abusers under the Violence Against Women Act. From Bolton's opinion:

The United States further asserts that there are numerous categories of lawfully-present aliens “who will not have readily available documentation to demonstrate that fact,” including foreign visitors from Visa Waiver Program countries, individuals who have applied for asylum but not yet received an adjudication, people with temporary protected status, U and T non-immigrant visa applicants, or people who have self-petitioned for relief under the Violence Against Women Act. (Id. at 26-27.)

[...]

Legal residents will certainly be swept up by this requirement, particularly when the impacts of the provisions pressuring law enforcement agencies to enforce immigration laws are considered. See A.R.S. § 11-1051(A), (H). Certain categories of people with transitional status and foreign visitors from countries that are part of the Visa Waiver Program will not have readily available documentation of their authorization to remain in the United States, thus potentially subjecting them to arrest or detention, in addition to the burden of “the possibility of inquisitorial practices and police surveillance.” Hines, 312 U.S. at 74. In Hines, the Supreme Court emphasized the important federal responsibility to maintain international relationships, for the protection of American citizens abroad as well as to ensure uniform national foreign policy. Id. at 62-66; see also Zadvydas v. Davis, 533 U.S. 678, 700 (2001) (“We recognize . . . the Nation's need to 'speak with one voice' in immigration matters.”). The United States asserts, and the Court agrees, that “the federal government has long rejected a system by which aliens' papers are routinely demanded and checked.” (Pl.'s Mot. at 26.)11 The Court finds that this requirement imposes an unacceptable burden on lawfully-present aliens. [United States v. Arizona, 7/28/10]

9th Circuit Upheld Preliminary Injunction Against AZ's Immigration Law. From the decision by the U.S. Court of Appeals for the 9th Circuit affirming Bolton's decision:

By imposing mandatory obligations on state and local officers, Arizona interferes with the federal government's authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed DHS agents. As a result, Section 2(B) interferes with Congress' delegation of discretion to the Executive branch in enforcing the INA.

• Reagan-Appointed Judge Concurred In 9th Circuit Decision. The 9th Circuit opinion was written by Judge Richard Paez, who was appointed by President Bill Clinton, and joined by Judge John Noonan, who was appointed by President Ronald Reagan. Judge Carlos Bea, who was appointed by President George W. Bush, dissented. In a concurring opinion, Noonan wrote:

I concur in the opinion of the court. I write separately to emphasize the intent of the statute and its incompatibility with federal foreign policy. [United States v. Arizona, 4/11/11]

Fox Hypes Error-Prone E-Verify

Bolling Claims That E-Verify “Would Solve The Problem Completely.” From the August 2 edition of Fox News' The Five:

BOB BECKEL (co-host): We have another state, Alabama, after following on Arizona, that has decided to take -- write its own immigration law and not let the United States of America, which does do immigration laws, implement their own laws. Now, in Alabama -- in Arizona they decided to allow the police to stop and check people to see if they were illegals. Now Alabama, which of course is a state that has a long history of dealing with minorities, and I want to call this the Bull Connor's law that they've got in Alabama. Now the Department of Justice is challenging Alabama as they have Arizona to say, “Wait, this is not a state issue, it is a national issue.” And one of the things I've noticed again with Alabama like Arizona, they didn't put in there that people who hire these people ought to be sent to the slammer.

BOLLING: They should. I mean that should be part of it. Or E-Verify, which would solve the problem completely. But no one seems to want to do that. [Fox News, The Five, 8/2/11]

E-Verify Does Not Adequately Screen Unauthorized Workers. In a January 2010 report commissioned by the Department of Homeland Security, research firm Westat analyzed data from September 2007 to June 2008 and found that “primarily due to identity fraud, approximately half (54 percent with a plausible range of 37 to 64 percent) of unauthorized workers run through E-Verify receive an inaccurate finding of being work authorized.” [U.S. Citizenship and Immigration Services, 1/28/10]

E-Verify Has A Limited System In Place To Correct Errors, Leaving Workers With Significant Costs For Corrections. Moreover, a December 2010 report from the Government Accountability Office (GAO) found that "[e]mployees are limited in their ability to identify, access, and correct personal information maintained by DHS that may have led to an erroneous TNC [tentative nonconfirmation]." [Government Accountability Office, 12/17/10]

E-Verify Can “Create The Appearance Of Discrimination.” In its December 2010 report, GAO found that the system would specifically target “those of Hispanic or Arab origin” and serve to “create the appearance of discrimination.” The report further stated that because of limited mechanisms to correct errors, “increased potential exists for an adverse impact on individuals' civil rights and civil liberties.” [Government Accountability Office, 12/17/10]

E-Verify May Negatively Impact U.S. Economy. In 2007, the Congressional Budget Office (CBO) estimated it would cost $3 billion to implement over four years. Additionally, making the program mandatory would hit small businesses the hardest. According to a January 27 Bloomberg Government piece, in 2008 it cost small businesses $2.6 million. [Congressional Budget Office, 6/4/07; Bloomberg Government, 1/27/11, via ICS Consulting]

Fox Falsely Claims That Obama Admin Is Not Enforcing Immigration Law

Crowley: “Why Isn't Holder ... Enforcing Current Federal Law Instead Of Suing States?” From the August 2 edition of Fox News' The Five:

CROWLEY: Let's talk about what these state laws actually say. Arizona and Alabama both enlisted top flight attorneys to take a close look at the federal law, and they drafted their state laws to run concurrently with the federal laws. So it's not like you've got 50 states out there running around making their own immigration law. They're saying, “We've now instituted state law. It's running parallel to the federal law -- doesn't encroach on federal powers at all -- but since the feds aren't doing their job, now we're going to go have to do it ourselves.” And, you know, why isn't Holder then enforcing current federal law instead of suing states that belong to the United States?

TANTAROS: If Democrats are so opposed to states actually trying to keep its citizens safe, then why not just repeal, Bob, the current law that's on the books making it illegal to come to this country? Just repeal it and we wouldn't have this problem. [Fox News, The Five, 8/2/11]

Deportations Have Increased Under Obama. According to data from the U.S. Immigration and Customs Enforcement (ICE), nearly 100,000 more people were deported by ICE in both Fiscal Years 2009 and 2010 than in Fiscal Year 2007. [U.S. Immigration and Customs Enforcement, accessed 7/7/11]

Seizures Of Drugs, Weapons Along Border Have Increased. According to data reported by USA Today, "[w]eapons seizures rose 28% and illicit-currency seizures were up 35% in fiscal 2009 and 2010." [USA Today, 2/9/11]

Deportations Of Convicted Criminals Are At Their Highest Levels. According to AZ Fact Check -- a project of The Arizona Republic, AZCentral.com, 12 News, and Arizona State University -- “ICE has removal numbers immediately available for only the past 10 fiscal years, and according to those figures, the most convicted criminals were indeed removed in fiscal 2010.” [AZ Fact Check, 2/9/11]

AP: “The U.S.-Mexico Border Is More Fortified Now Than It Was Even Five Years Ago.” A June 23, 2010, Associated Press article noted: “You wouldn't know it from the public debate, but the U.S.-Mexico border is more fortified now than it was even five years ago. Far more agents patrol it, more fences, barriers and technology protect it and taxpayers are spending billions more to reinforce it.” [AP, 6/23/10]

U.S. Border Patrol Chief: There Are Currently More Border Patrol Agents “Than Ever Before In The History Of This Country.” The Obama administration has been increasing the number of Border Patrol officers on the southern border. During a July 2010 hearing of the House Committee on Homeland Security, U.S. Border Patrol chief Michael Fisher said, “Currently we have over 20,000 Border Patrol Agents nationwide, more than ever before in the history of the country.” [House Homeland Security Committee Hearing, 7/22/10]

Obama Signed $600 Million Border Security Bill For More Border Patrol Agents And Customs Inspectors. On August 13, 2010, Obama signed a $600 million border security bill to “fund some 1,500 new border patrol agents, customs inspectors and other law enforcement officials along the border, as well as two more unmanned aerial 'drones' to monitor border activities.” [Reuters, 8/13/10]

Fox Pushes False Claim That Illegal Immigration Is Increasing

Bolling: Deportations Have Increased Because “There Are More Illegals Coming In.” From the August 2 edition of Fox News' The Five:

BOLLING: What happened in Arizona, what's going on in Alabama right now are two states who said, “Look, we're supposed to rely on you to secure our borders. You're not doing it so we're going to do it on our own.” I don't think the laws are that crazy. You're not allowed to hire an illegal. You're not allowed to transport an illegal. What's wrong with that?

BECKEL: Well, first of all, there are more deportations in this year than there ever has been in the history of immigration.

BOLLING: Because there are more illegals coming in. [Fox News, The Five, 8/2/11]

Expert: “The Flow” Of Immigrants From Mexico Into America “Has Already Stopped” And “The Net Traffic Has Gone To Zero And Is Probably A Little Bit Negative.” A July 6 New York Times article reported:

Douglas S. Massey, co-director of the Mexican Migration Project at Princeton, an extensive, long-term survey in Mexican emigration hubs, said his research showed that interest in heading to the United States for the first time had fallen to its lowest level since at least the 1950s. “No one wants to hear it, but the flow has already stopped,” Mr. Massey said, referring to illegal traffic. “For the first time in 60 years, the net traffic has gone to zero and is probably a little bit negative.”

The decline in illegal immigration, from a country responsible for roughly 6 of every 10 illegal immigrants in the United States, is stark. The Mexican census recently discovered four million more people in Mexico than had been projected, which officials attributed to a sharp decline in emigration.

American census figures analyzed by the nonpartisan Pew Hispanic Center also show that the illegal Mexican population in the United States has shrunk and that fewer than 100,000 illegal border-crossers and visa-violators from Mexico settled in the United States in 2010, down from about 525,000 annually from 2000 to 2004. Although some advocates for more limited immigration argue that the Pew studies offer estimates that do not include short-term migrants, most experts agree that far fewer illegal immigrants have been arriving in recent years. [The New York Times, 7/6/11]

Study: Illegal Immigration Fell In FY 2010 Due To “Economic Distress” And “Changes In The Level Of Immigration Enforcement.” In a study on the national and state trends of the unauthorized immigrant population in the United States, Pew Hispanic Center found that “economic distress” and “changes in the level of immigration enforcement” led to a decrease in the number of undocumented immigrants crossing into the United States. From Pew Hispanic Center:

The decline in the population of unauthorized immigrants from its peak in 2007 appears due mainly to a decrease in the number from Mexico, which went down to 6.5 million in 2010 from 7 million in 2007. Mexicans remain the largest group of unauthorized immigrants, accounting for 58% of the total.

• The number of unauthorized immigrants decreased from 2007 to 2010 in Colorado, Florida, New York and Virginia. The combined population in three contiguous Mountain West states-Arizona, Nevada and Utah-also declined.
• In contrast to the national trend, the combined unauthorized immigrant population in three contiguous West South Central states-Louisiana, Oklahoma and Texas-grew from 2007 to 2010.
• Although the number of unauthorized immigrants in the U.S. is below 2007 levels, it has tripled since 1990, when it was 3.5 million and grown by a third since 2000, when it was 8.4 million.

The estimates are based on data from the U.S. Census Bureau's Current Population Survey, augmented with the Pew Hispanic Center's analysis of the demographic characteristics of the unauthorized immigrant population using a “residual estimation methodology.”

Although the estimates indicate trends in the size and composition of the unauthorized-immigrant population, they are not designed to answer the question of why these changes occurred. There are many possible factors. The deep recession that began in the U.S. economy officially ended in 2009, but recovery has been slow to take hold and unemployment remains high. Immigration flows have tended to decrease in previous periods of economic distress.

The period covered by this analysis also has been accompanied by changes in the level of immigration enforcement and in enforcement strategies, not only by the federal government but also at state and local levels. Immigration also is subject to pressure by demographic and economic conditions in sending countries. This analysis does not attempt to quantify the relative impact of these forces on levels of unauthorized immigration. [Pew Hispanic Center, 2/1/11]

For previous examples of Fox's misinformation on these immigration issues, click here, here, and here.