This is the Alamo
In November 2006, Democrats tapping into a backlash against Bush and the war on Iraq won back the House. Yet immigration permeated the campaign. Republicans emphasized anti-immigrant themes to drive the base to the polls.21 Democrats often responded by trying to outflank them. Indeed, Illinois representative Rahm Emanuel, the chair of the Democratic Congressional Campaign Committee and former Clinton advisor, encouraged right-leaning Democrats to back the Sensenbrenner bill to, in The Intercept’s words, “burnish their conservative credentials.”22
Jim Kessler, vice president for policy at the Clintonite group Third Way, urged Democrats to attack Republicans for being weak on illegal immigration.23 The plan was embraced by Emanuel and New York senator Chuck Schumer, his counterpart at the Democratic Senatorial Campaign Committee. In Arizona, Democrat Harry Mitchell ousted J. D. Hayworth, one of the most hard-line xenophobes in Congress. Mitchell’s campaign focused on corruption, but it also made a point of holding Hayworth responsible for border insecurity. One ad for Mitchell declared: “The number of illegal immigrants in our state has increased 400 percent during his tenure in Congress.”24 This approach was typical for purple-seat Democrats.
North Carolina Democrat and former NFL player Heath Shuler and Nebraska Democratic senator Ben Nelson both ran ads decrying “amnesty.” In Tennessee’s Senate race, Democratic representative Harold Ford Jr. declared in a debate, “I’m the only person on this stage who has ever voted for an anti-illegal-immigration bill, matter of fact the strongest in the country.”25
In June 2007, another Bush-backed reform bill spectacularly failed in the Senate after pro-labor Democrats critical of guest worker programs (SEIU supported the bill but the AFL-CIO opposed it)26 and conservative Democrats joined most Republicans in opposition. Nearly two decades of establishment pledges to lock down the border had enabled the right to insist that they follow through. Pairing legalization with harsh enforcement measures was unacceptable. Only enforcement would do. “The message is crystal-clear,” said Louisiana Republican senator David Vitter. “The American people want us to start with enforcement at the border and at the workplace and don’t want promises. They want action, they want results, they want proof, because they’ve heard all the promises before.”27
Alabama Republican senator Jeff Sessions accused reformers of having tried to pass the bill “before Rush Limbaugh could tell the American people what was in it.”28 But “tell the American people” is precisely what talk radio did. “We’re not giving away the sovereignty of America,” Michael Savage told listeners, “This is the Alamo right now!”29 Limbaugh, Sean Hannity and Savage, along with Dobbs on CNN and Bill O’Reilly on Fox News, rallied the faithful.30 Dozens of talk radio hosts gathered in Washington for a broadcast marathon against “amnesty” organized by John Tanton’s FAIR.31
At one point in 2007, according to a Pew Research Center study, immigration became the most discussed story on talk radio.32 “See, we don’t live in Africa where people settle arguments with machetes,” Savage railed in response to a presumably African caller who had criticized his ignorance of Africa. “Couldn’t use the machete so his mind went blank … There’s multiculturalism for you. There’s immigration for you. There’s the new America for you. Bring them in by the millions. Bring in 10 million more from Africa. Bring them in with AIDS. Show how multicultural you are. They can’t reason, but bring them in with a machete in their head. Go ahead. Bring them in with machetes in their mind.”33
CIR was dead for the remainder of the Bush administration. But the crackdown, ostensibly a means to an end, had taken on a life of its own. On May 12, 2008, ICE raided Agriprocessors, a kosher meatpacking plant in Postville, Iowa, detaining 389 workers in one of the largest workplace raids ever. Hundreds were sentenced in makeshift courtrooms set up at nearby Waterloo’s National Cattle Congress fairgrounds in what the ACLU called a “guilty-plea machine.”34 Two hundred ninety-seven served five-month prison sentences before deportation.35
Making Arpaio
Facing repeated defeats at the hands of the right, Bush empowered state and local law enforcement to play a growing role in immigrantion enforcement. In 2007, ICE signed twenty-seven new 287(g) agreements, deputizing local law enforcement and jails to identify and detain undocumented immigrants. The agency signed twenty-eight more in 2008. The statute was part of Clinton’s 1996 IIRIRA law but was first employed in 2002 as an anti-terrorism measure.36 Instead of defusing nativism, Bush’s move increased its local salience—including in Arizona, which had become for anti-immigrant politics what California was in the 1990s.
ICE signed an agreement with Democratic governor Janet Napolitano’s Department of Public Safety and one with the Maricopa County Sheriff’s Office. The sheriff was Joe Arpaio, notorious for running an abusive desert jail camp, arresting critical journalists, persecuting political enemies, investigating Obama’s place of birth and, of course, for using his deputies to hunt down undocumented immigrants across greater Phoenix.37 “Let them go to California,” he swaggered, echoing the right-wing belief that an increasingly liberal and Latino California was an object lesson in what happens when borders fail.38
Arpaio had made harsh, brazenly racist immigration enforcement his calling card, which in turn made him a right-wing folk hero. But until the mid-2000s, Arpaio, a former DEA agent, hadn’t evinced much interest in the subject and was seemingly content to revel in the media attention paid to his chain gangs and Tent City jail, where prisoners were issued pink underwear, fed bologna, and suffered rampant violence.39
Remarkably, it was Governor Napolitano who helped make Arpaio.40 During her time as US attorney in the mid-1990s, Napolitano protected Arpaio from a Justice Department investigation into abuse at his Tent City jail. In 1995, she emphasized that the investigation should not be construed as reflecting poorly on Arpaio, who was providing her with his “complete cooperation.” “We run a strict jail but a safe jail, and I haven’t heard from anyone who thinks that this is a bad thing,” she said.41 In 1997, Napolitano declined to file civil rights charges against Arpaio. Standing alongside the sheriff, she announced that the lawsuit, which she called a “technicality,” had been settled with what she called “lawyerly paperwork.” “Nothing changes,” Arpaio assured the public.42 When Napolitano ran for governor in 2002, he returned the favor by recording a campaign ad declaring her “the Number One prosecutor of child molesters in the nation.” It may have proved decisive in an election she won by fewer than twelve thousand votes—an election in which Arpaio had considered running as a Republican.43
After taking office, Napolitano mostly looked the other way as complaints of Arpaio’s abusive and racist practices mushroomed and as the sheriff turned to a more explicitly anti-immigrant agenda.44 The turning point was 2005, when army reservist Patrick Haab held up a group of men he thought were undocumented at gunpoint in a self-styled citizen’s arrest.45 Arpaio’s deputies arrested Haab and the immigrants were taken into custody by Border Patrol.46
“You don’t go around pulling guns on people,” said Arpaio, not yet alert to the power of right-wing anti-immigrant sentiment. “Being illegal is not a serious crime. You can’t go to jail for being an illegal alien … You can only be deported.” But Maricopa County Attorney Andrew Thomas, who had run for office with signs blaring “STOP ILLEGAL IMMIGRATION!,” refused to press charges against Haab, who had become a folk hero.47 Arpaio took notice, recrafting his publicity-driven, law-and-order sadism to fit the prevailing mood. “You could almost see a light bulb go off as Arpaio watched the positive reaction from the public,” said Paul K. Charlton, who was US attorney for Arizona at the time. “From that point on, we lost him.”48
But the feds hadn’t lost Arpaio at all. In October 2007, he claimed that deputies trained to enforce immigration law under his newly signed 287(g) agreement had arrested 349 undocumented immigrants. Those swept up in Arpaio’s crackdown included at least forty-nine day laborers and corn vendors.49 “Ours i
s an operation where we want to go after illegals, not the crime first,” said Arpaio. The Bush administration had no problem with that. “I saw nothing that gave me heartburn,” said ICE Office of State and Local Coordination head Jim Pendergraph, as Arpaio’s deputies and posse members swept through Hispanic neighborhoods. Pendergraph, who signed his own 287(g) agreement during his time as sheriff in Mecklenburg County, North Carolina, wasn’t an unbiased observer. Touting the program at a law enforcement gathering, he declared: “If you don’t have enough evidence to charge someone criminally but you think he’s illegal, we can make him disappear.”50 By 2010, Arpaio’s office had held more people on ICE detainers than any other 287(g) jurisdiction, a full 16 percent of the nationwide total.51
Napolitano bolstered Arpaio in other, little-noticed ways. In 2005, she wrote a letter to DHS secretary Chertoff laying out her plan to have state police work with Border Patrol to identify undocumented immigrants, including those identified during “routine traffic or other law enforcement activities,” to be jailed by Arpaio.52 Then, in 2006, facing a reelection campaign that would feature Republican attacks that she was weak on “illegal immigration,” she and Arpaio co-authored a letter to Chertoff complaining that ICE’s outgoing Special Agent in Charge in Phoenix had shown “hostility to state and local law enforcement.” In particular, they charged that “ICE cooperation has been so lacking that the agency even has refused to pick up and deport undocumented immigrants who have been convicted under Arizona’s human smuggling statute.”53 Already, Arpaio was being widely criticized for using that state law (signed by Napolitano)54 to arrest and charge the clients of those “smugglers”: ordinary undocumented migrants.55
Secure Communities
In 2008, Barack Obama defeated John McCain, who had tried to win right-wing support by backing away from the kind of reform legislation that had once borne his name. Business conservatives increasingly shied away from “amnesty.” It fell to Obama to adopt Bush’s mantle—and, along with it, the principle that harsh enforcement was the prerequisite for securing CIR. It’s also possible, however, that Obama knew CIR might not pass and simply thought that simultaneously enacting tough enforcement while calling for legalization was good politics.
In 2009, Napolitano moved to Washington to take over at Obama’s DHS. As governor, she had vetoed the most extreme anti-immigrant legislation.56 But by voluntarily vacating the office, she recklessly turned over unified control of Arizona government to Republican Jan Brewer and right-wing colleagues like former Arpaio chief deputy and state senator Russell Pearce, ensuring that such legislation would become law.57 Immediately, the Obama administration distanced themselves from Arpaio. In March, the Justice Department announced that it was investigating the Sheriff’s Office. In October, DHS terminated Maricopa County’s “task force” 287(g) agreement that allowed deputies in the field to enforce immigration law, drawing complaints from Arizona senators McCain and Jon Kyl.58 DHS, however, left in place the consequential authority to enforce immigration law at Arpaio’s jails.59
In November 2009, Napolitano gave her first major immigration speech at the Center for American Progress (CAP), the center-left Washington think tank tethered to the Obama White House. She declared that reform “begins with fair, reliable enforcement.” IRCA had been a failure, she argued, because it was “one-sided reform” that never led to the promised enforcement, which “helped lead to our current situation, and it undermined Americans’ confidence in the government’s approach to this issue.” Indeed, she said that CIR had collapsed in 2007 because of “the real concern of many Americans that the government was not really serious about enforcing the law.” The dramatic increase in enforcement since, by contrast, “makes reform far more attainable this time around.”60
In her speech, Napolitano touted 287(g) agreements like the ones that her Arizona Department of Public Safety and Arpaio had signed as “effective force multipliers in our efforts to apprehend dangerous criminal aliens.” She also lauded a program called Secure Communities, which changed immigration politics and policy forever. Initiated under Bush during his final months in office, it revolutionized enforcement by merging a DHS biometric database with an FBI database of fingerprints entered by law enforcement after an arrest. Now, every local police department booking a suspect into custody was a proxy ICE force ascertaining their immigration status. The program had in its first year of operation “identified more than 111,000 criminal aliens,” she said. Touting her experience in Arizona, she praised Bush’s militarization. “Border Patrol has increased its forces to more than 20,000 officers, and DHS has built more than 600 miles of border fencing. Both of these milestones demonstrate that we have gotten Congress’ message.”
CAP, which would play a key role in CIR efforts under Obama, loved it. Founder and president John Podesta, Clinton’s former chief of staff, called CIR “a pragmatic solution that recognizes the impracticalities of driving a large number of people from the United States.”61 CAP’s lead on the issue, National Immigration Forum veteran Angela Kelley, declared that “DHS has driven the issue to the threshold of Congress’ door. Congress must open the door and we all must join together to pass legislation that restores our identity as a nation of immigrants and a nation of laws.”62 Polling had led CAP and other Democrats to conclude that reformers must refer to “illegal immigrants”whom CIR would force to “obey our laws, learn our language and pay our taxes.”63
But National Day Laborer Organizing Network (NDLON) legal director Chris Newman was listening to the speech, and it didn’t make sense. Secure Communities identifies undocumented immigrants at the point of arrest, not conviction. It couldn’t have identified that many “criminal aliens” in a year. In response, NDLON launched an investigation of the program, which had quite suddenly become the centerpiece of federal immigration enforcement.
Secure Communities plugged federal immigration enforcement into the core of the state and local law enforcement information network. ICE received a flood of positive identifications on deportable immigrants; if ICE wanted them in custody, they would issue a “detainer,” or request that police hold a suspect until ICE could pick them up. It was embraced as a subtle, targeted, and cost-effective force multiplier. Secure Communities also seemed to promise better public relations, targeting “dangerous criminal aliens” instead of sympathetic low-wage workers.64 And unlike the 287(g) program, which deputized local law enforcement to directly enforce immigration law, it wouldn’t involve signing deals with controversial figures like Arpaio.
In reality, Secure Communities targeted a broad swath of migrants by creating an unprecedented, computerized deportation machinery linking local police to ICE. “The scale in just the number of people who were being checked against these databases increased tremendously,” Faye Hipsman, then a Migration Policy Institute analyst, told me. “It became essentially the main pipeline … into the deportation process.” And the number of deportations exploded, even though unauthorized immigration had already plummeted after 2007 with the onset of the devastating recession.65
Secure Communities was the culmination of a decades-long process of linking civil immigration and criminal law enforcement, and framing immigration as fundamentally about crime. The program’s dragnet was remarkably wide, identifying immigrants everywhere at the point of arrest—which, in a country that arrests so many people, included a massive and diverse set of immigrants. It soon became clear that many of those being deported had either no criminal record or had been convicted of only minor crimes.66
In 1994, California governor Pete Wilson campaigned against “illegal immigration” by contrasting it with immigrants who come the “right way.” In 1996, Clinton had signed IIRIRA, targeting “illegal immigrants” and “criminal aliens,” while a bill to cut legal immigration was scuttled. Establishment reformers did the same, emphasizing “this good immigrant, bad immigrant binary,” immigration law scholar César Cuauhtémoc García Hernández told me, and were “repeatedly willing to
sacrifice the so-called criminal aliens in order to move the CIR ball forward.”67 Obama’s stated plan was the same as Bush’s: tough enforcement to win CIR.68 Protecting some immigrants by demonizing others, however, is a strategy that sows the seeds of its own opposition. Praising good immigrants for restoring America, as political theorist Bonnie Honig writes, also suggests its opposite: the specter of the bad immigrant who will do us harm.69
Raising Arizona
By the late 1990s, the immigration wars had waned in California. At the border near San Diego, once-ubiquitous and highly visible illegal crossings had fallen in response to rising militarization. The migrants, however, did not disappear: they were pushed east into the Arizona desert. In 1991, just over half of Border Patrol apprehensions in the Southwest took place in the San Diego sector. In 2000, only 9 percent did; 36 percent were made in the Tucson sector, an area stretching 262 miles from Yuma County to the New Mexico state line.70
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