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Mr. DURBIN. Mr. President, today, the U.S. Supreme Court announced its decision on S.B. 1070--the controversial Arizona immigration law. The Court--including conservative Justices Anthony Kennedy and John Roberts--agreed with the Obama administration that a State cannot set up its own immigration enforcement system.
As a result, the Supreme Court struck down several parts of the Arizona law, including the provision that would have made it a crime in Arizona to be an undocumented immigrant and the provision that would have required legal immigrants to carry documents proving their legal status at all times.
The Supreme Court is right. States do not have the right, under the Constitution, to enact immigration laws that contradict Federal law. Many of my colleagues on the other side of the aisle strongly criticized the Obama administration for even challenging the Arizona immigration law. There was even an amendment offered to try to block the Justice Department from pursuing the litigation brought to the Supreme Court. Fortunately, the vast majority of Democrats, joined by two Republicans--Senators Johanns and Voinovich--blocked that amendment.
Now the Supreme Court--including Chief Justice Roberts and Justice Kennedy--has sided with the Obama administration in holding the vast majority of the Arizona law unconstitutional.
I am troubled the Supreme Court upheld one of the provisions in that law in Arizona--section 2(B)--which requires Arizona police officers to check the immigration status of suspected undocumented immigrants. But it is important to understand the Court's decision on that section is a narrow one. The only question for the Court was whether that section--2(B)--was preempted by Federal immigration law. The Court said it is open to future challenges once the law goes into effect, and this provision may still be held unconstitutional, as the other provisions in the Arizona law.
According to law enforcement experts, section 2(B) is likely to encourage profiling, which would violate the Equal Protection Clause of the 14th amendment to the Constitution. Specifically, section 2(B) requires police officers to check the immigration status of any individual with whom they have lawful contact if they have ``reasonable suspicion'' the person is an undocumented immigrant.
What is the basis for a reasonable suspicion the person they pull over is, in fact, an undocumented immigrant? The guidance on the law issued in the State of Arizona says police officers should consider things such as how a person is dressed or their ability to communicate in English.
Earlier this year, I held a hearing on racial profiling in the Judiciary's Subcommittee on the Constitution, Civil Rights and Human Rights. It was the first hearing on racial profiling since before 9/11. One of the witnesses at my hearing was Ron Davis. He is the chief of police in East Palo Alto, CA, and
Chief Davis, along with 16 other law enforcement officials and the Major Cities Chiefs of Police Association, filed a brief in the Arizona case. In their brief, the police chiefs say:
The statutory standard of ``reasonable suspicion'' of unlawful presence in the United States will as a practical matter produce a focus on minorities, and specifically Latinos.
Two former Arizona attorneys general, joined by 42 other former State attorneys general, filed an amicus brief in the Arizona case, and they said ``application of the law requires racial profiling.'' I agree with these law enforcement experts. I am confident section 2(B) will eventually be struck down as the other provisions of the Arizona law were.
The Arizona law is the wrong approach for America. It is amazing to me how this Nation of immigrants, in which we are all part of the family, has struggled for so long to deal with the whole issue of immigration. I think it is wrong to treat people as criminals simply because of their immigration status, and it is not right to make criminals of people who literally go to work every day, cooking our food, cleaning our rooms, and caring for our children in day care centers or caring for our parents and grandparents in nursing homes.
Here is the reality: Treating immigrants as criminals will not help combat illegal immigration. Law enforcement doesn't have the time or the resources to prosecute and incarcerate every undocumented immigrant among the 10 million or 11 million in this country. Making undocumented immigrants into criminals simply drives them into the shadows. That is why the Arizona Association of Chiefs of Police opposes the Arizona law considered by the Court today. They say it will make it more difficult for them to make Arizona a safe place. Immigrants are less likely to cooperate with the police if they fear they are going to get arrested for even trying to help.
Instead of measures that harm law enforcement and promote racial profiling, such as the Arizona immigration law, we need practical solutions to fix a broken immigration system. That case was before the Supreme Court. The Court made its decision today because this body--the Senate and the House--have failed to accept their responsibility. We have a responsibility, if, in fact, immigration is a Federal issue, for a Federal response, and we failed.
The first step we should take in passing comprehensive immigration reform is to pass the DREAM Act--legislation that would allow a select group of immigrant students who grew up in this country to earn citizenship either by attending college or serving in the military.
Russell Pearce is the author of the Arizona immigration law. He had this to say about the DREAM Act:
The DREAM Act is one of the greatest legislative threats to America's sovereignty, national security and economic future.
I see it differently and so do many others, including GEN Colin Powell and former Defense Secretary Robert Gates. They support the DREAM Act because it would make America a stronger country by giving these talented immigrants the chance to serve in the military and contribute to the future of America.
The best way to understand the problems with the Arizona immigration law and the need for the DREAM Act and comprehensive immigration law is to hear the stories of some of the immigrant students who would be eligible for the DREAM Act. They call themselves DREAMers. Almost every week in the session I come to the floor of the Senate to tell the story of one of these young people. Over the years I have told stories of several DREAMers from the State of Arizona. Under the Arizona law, these young people would be targets for prosecution and incarceration. Under the DREAM Act, they would be future citizens who could make America and Arizona stronger.
Today, I wish to introduce one of them from Arizona. Her name is Angelica Hernandez. She was brought to Phoenix, AZ, when she was 9 years old. She started school in the fourth grade, and by the time she reached the sixth grade, Angelica no longer took English as a second language. She was proficient in the language of English.
At Carl Hayden High School in Phoenix, AZ, Angelica served in Junior ROTC and was president of the National Honor Society. She became a dedicated member of the school's robotics club, where she found her true love, engineering.
Angelica graduated from high school with a 4.5 GPA and in 2007 was named Outstanding Young Woman of the Year for district 7 in Phoenix. Last year, Angelica Hernandez graduated from Arizona State University--we can see her holding her graduation certificate--as the outstanding senior in the Mechanical Engineering Department, with a 4.1 GPA.
Under the Arizona immigration law, Angelica Hernandez would be a target for prosecution and incarceration. Under the DREAM Act, she would be a future citizen and engineer who could contribute her talents to making this a better country. What a choice: to take this woman, who has spent virtually her entire life, as she remembers it, in America, attending our schools, excelling in those schools, being acknowledged as one of the better students so her ambition takes her to a great university, Arizona State University, where she graduated at the top of her class in mechanical engineering and, some would say, tell her now she must leave America, I think is wrong. Angelica Hernandez, and people like her, will make this a better country. Unlike the Arizona immigration law, the DREAM Act is a practical solution to a broken immigration system. The Arizona law would harm law enforcement and encourage profiling. The DREAM Act would make America stronger.
President Obama understands this. That is why he challenged the Arizona law, taking the case to the Supreme Court. That is why earlier this month I saluted the President for announcing his administration will no longer deport people, such as Angelica Hernandez, who would be eligible for the DREAM Act. I strongly support President Obama's courage and his decision. It is one of the most historic, humanitarian moments of our time. His decision will give these young immigrants the chance to finally come out of the shadows and be part of the only country they have ever called home. It was the right thing to do.
These students didn't make the decision to come to this country. Angelica was brought here at the age of 9, and it is not the American way to punish children for the wrongdoing of their parents. President Obama's new deportation policy will make America better by giving these talented immigrants the chance to contribute.
Studies have found DREAM Act students will literally boost the American economy during their working lives. This policy is also clearly legal. Throughout our history, the government has decided who to prosecute and who not to prosecute based on law enforcement priorities and availability resources. Past administrations of both political parties have used their authority to stop deportation of low-priority cases. The courts have recognized that.
Listen to what the Supreme Court said today in the Arizona immigration law case:
A principal feature of the removal system is the broad discretion exercised by immigration officials. ..... Discretion in the enforcement of immigration law embraces immediate human concerns.
The President's plan is smart and realistic. The Department of Homeland Security has to set priorities. It is not amnesty; it is simply a decision to focus limited government resources on those who have committed serious crimes and are a threat to public safety, not the DREAM Act students.
Compare President Obama's approach with the Presidential candidate from another party who said the Arizona law was a ``model'' for the rest of America. That other Presidential party candidate has promised that if he is elected President he will veto the DREAM Act. He has refused to say whether he would even maintain or rescind President Obama's order banning the deportation of DREAM Act students. That is the wrong approach for America.
The administration's new policy on the DREAM Act is only temporary. I understand that. The burden is still on us in the Senate and the House to do something about the many thousands of students across America, just like this dynamic young lady in Arizona, who simply want a chance to be a part of America and its future. Our first step: Pass the DREAM Act. Do it and do it now.
Justice Kennedy wrote in his opinion today:
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.
Justice Kennedy is right. Congress should reform our immigration laws so we can once again welcome those who cross oceans and deserts to revitalize and strengthen this Nation of immigrants.
Mr. President, I yield the floor.
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The Senator from Illinois.
Mr. DURBIN. Let me say, the Senator from Arizona is my friend, and there are many things we have worked on together, and I respect him very much. He knows, as I do, when the DREAM Act was called, we thought the introductory may be the easiest part of immigration reform. It was stopped by a Republican filibuster.
Mr. McCAIN. I don't dispute that point, I say to my friend from Illinois. There was no comprehensive immigration reform proposal that came over from the White House or from the Democrats, as was promised by then-Senator Obama when running for the Presidency. That is a fact.
Mr. DURBIN. I would say to the Senator from Arizona, as part of this colloquy, we thought that would be the first step. We couldn't get past the first step because of the Republican filibuster.
Mr. McCAIN. I wish that when then-Senator Obama was running for President he would have said: But first I am coming over with the DREAM Act. He didn't. He said: My first act will be comprehensive immigration reform.
I was invited over to the White House in 2009. We talked about comprehensive immigration reform and I said: I will await a proposal from the administration on comprehensive immigration reform. My phone never rang.
Mr. DURBIN. I say to the Senator from Arizona, perhaps the day will come in our lifetime when we can see that, and you and I can work on it together again as we once did before. I would look forward to that.
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