by Jan Brewer
I became like a woman possessed. I called for the feds to “secure our border” until I was blue in the face. At a Senate Homeland Security Committee meeting in Phoenix on southern Arizona border violence, I repeated this call so many times that committee chairman Joseph Lieberman of Connecticut finally said, exasperated, “Governor, we get it. You want your border secure!”
The area where the feds had been the biggest scofflaw, as far as I was concerned, was in failing to reimburse the states for the cost of incarcerating criminal illegal aliens. Like Janet Napolitano before me, I was a broken record when it came to nagging the federal government to pay its share for the 17 percent of our prison population that is here illegally. The Arizona taxpayers pick up a tab of about $150 million every year for this burden. Congress established SCAAP to help the border states defray these costs. The program is always in arrears, though. Governor Napolitano constantly held press conferences berating the Bush administration for her SCAAP dollars with an oversize invoice. When she went to Washington to become Homeland Security secretary, she left behind the invoice prop. We were so desperate, we felt like sending Napolitano her own oversized invoice to get her to send us the money.
Unbelievably, the first year I was governor, President Obama actually cut funding for SCAAP by $400 million. In the midst of his infamous first-year spending spree, he saw fit to underfund an already underfunded federal obligation. To justify the cut, the Obama administration laughably claimed, “In place of SCAAP, the administration proposes a comprehensive border enforcement strategy.” This is a lot like a guy at a diner telling the waitress that instead of paying for his lunch, he proposes a global strategy to eliminate world hunger.
That May I finally got the chance to confront President Obama directly. The president was scheduled to give the commencement address at Arizona State University. I met him before he spoke to a packed crowd at Sun Devil Stadium. “I really want to talk to you regarding the dollars that we’re owed for the imprisonment of criminal aliens here in Arizona,” I said. He was very cool to me. In fact, he blew me off.
As the months went on, all my begging and pleading added up to precisely zero. Not even a “Sorry, we can’t help you, Jan!” or “Try us again next year!” So I did what I had to do. I ordered the state Department of Corrections to return all nonviolent criminal illegal aliens to the custody of U.S. Immigration and Customs Enforcement (ICE). “These inmates are the responsibility of the federal government (as is securing our border with Mexico),” I wrote. “Arizona should not have to bear this cost. . . . The Federal Government is supposed to reimburse local law enforcement for the costs associated with detaining illegal immigrants. Since they refuse to pay their fair share, we will continue to send these inmates to ICE.”
On April 6, 2010, I wrote directly to the president of the United States. First I thanked him for designating certain parts of Arizona major disaster areas due to tough winter storms we had had earlier that year. Then I said, “There is yet another emergency facing Arizona, but this one is not the result of a natural disaster. In contrast, this emergency has been the result of decades of neglect and an open unwillingness of the federal government to fully shoulder its constitutional duty to secure our country’s southern border with Mexico.” Still nothing but radio silence from Washington.
Rob Krentz’s murder in March 2010 was the last straw. I remember finally realizing that we could no longer wait for Washington to act during a trip to the border with Representative Gabrielle Giffords just three days after Rob had been killed. We were going to attend the opening of a new U.S. Border Protection facility in Tucson. Tensions were very high. Not just the ranchers, but all of southern Arizona, it seemed, were up in arms over the killing. How we could have allowed this to happen was very much on my mind as I traveled to Tucson to be with Gabby, U.S. Attorney Dennis Burke, and a huge gaggle of media.
While we were there, we met with an official who had been in charge of El Paso’s border station and was now in charge of border security in New Mexico, Arizona, and California. I asked him, “What’s the difference you see between Arizona and the other places you’ve worked?” His answer stunned me: “There are no consequences here.”
He was exactly right. There are no consequences here. No consequences for crossing the border illegally. No consequences for breaking the law. When the federal government had decided there would be consequences to illegally crossing the border in California and Texas, crossings had gone down. But Washington, for whatever reason, had refused to do the same in Arizona, and now Rob Krentz was dead.
Enough was enough. The feds had failed in Washington. Arizonans had to act.
What would become known as SB 1070, or earlier versions of it, had been floating around for years by the time I became governor. National Public Radio would falsely report that the legislation had been hatched in a 2009 meeting between Arizona legislators and representatives of the private prison industry (who presumably, the story noted, would benefit from the law). In fact, Arizona senator Russell Pearce, the original sponsor of the bill, had introduced similar legislation almost every year since 2003.
The bill was the result of a decade of Arizonans watching the federal government take action to secure the border, first in California and then in Texas, but not in our state. Then we watched as Washington tied itself in knots in 2006 and 2007 over immigration. “Comprehensive immigration reform,” we knew, was code for perpetuating the failed status quo. We’d been down that road before, and that was no longer an option to consider before securing the border. We found that a lot of Americans agreed with us as we watched even “comprehensive” immigration reform fail in Washington.
By the middle of the decade, after a fivefold increase in the number of illegal aliens in our state and with crime shooting up in our cities, Arizona couldn’t wait any longer. Long before SB 1070, we began to address the problem ourselves. We passed Proposition 200 to protect the integrity of our elections and to limit state welfare benefits to those who are eligible. We followed that up in 2007 with our law enforcing the federal law against employing illegal aliens by requiring that employers use E-Verify. SB 1070 was passed in the same spirit as these earlier measures: If the federal government wasn’t going to secure the border, we were going to do what we could to make Arizona less attractive to illegal aliens.
The idea is called “attrition through enforcement.” What that means is that illegal immigration into the United States can be curtailed—and the number of illegal aliens already here reduced—simply by enforcing the law. The hope was that by creating less of a magnet in the form of jobs and welfare benefits, we would see less illegal immigration to the state. After all, it is Americans and American public officials who are largely responsible for luring illegal aliens to our country in the first place. When you remove the incentives we create through jobs and benefits, you give people less reason to come here illegally. And when you do that, everyone wins. States like Arizona bear less of a burden, and fewer poor, desperate people in Mexico and elsewhere are exploited by smugglers and drug dealers.
SB 1070 continues attrition through enforcement by creating a state penalty for what is already a federal crime: being in the United States illegally. Since 1940, all immigrants have been required under federal law to carry documents showing they are here legally. SB 1070 makes it a misdemeanor in the state of Arizona to fail to carry such documentation. Its language mirrors language found in the federal statute. And contrary to what some of our critics have charged, SB 1070 doesn’t permit police to harass people who they think might be illegal immigrants. It allows (but does not require) a law enforcement officer who is in the course of making a lawful stop such as a traffic violation to inquire about a person’s legal status—but only if the individual’s behavior and circumstances provide “reasonable suspicion” that the person is here illegally.
This last point bears repeating. Under SB 1070 there are two hurdles a police officer
must clear before he can ask someone about his or her immigration status. First, the person must have committed some other violation of the law. Second, the officer must have a reasonable suspicion that the person is illegal. Then, and only then, can the person be questioned about his or her immigration status.
Earlier versions of SB 1070 had passed the Arizona legislature in 2006 and then again in 2008. Despite the fact that she signed Arizona’s law enforcing the federal law against employing illegal aliens, then-governor Janet Napolitano vetoed these earlier iterations of SB 1070. But when the latest version of the bill passed the State Senate in February the year after I became governor, I put my staff on the case. I generally don’t comment on legislation that hasn’t reached my desk, but I knew SB 1070 had the potential to be an important tool in our fight against illegal immigration. I told my staff to work with the legislature, and my instructions were explicit: Any bill I could sign had to meet three basic criteria:
First, it had to work. This was crucial. If it didn’t work, the law wouldn’t just be pointless, it would be counterproductive. An ineffective law would just continue the political charade. It would be further proof that we weren’t serious about stopping illegal immigration. That was the last message I wanted to send.
Second, the bill had to be constitutional—it had to be able to survive the court challenges we knew would come. This was important to me personally, not only because of my deep respect and love for the Constitution and the freedom it preserves but because I didn’t want any grounds for a court to strike it down.
Third, and most important, it had to protect civil rights. I was convinced that any law that worked would have to bring Arizonans together, not push them apart. Fears and charges of racism would distract us from the hard work of securing our border and would allow our critics to cast doubt upon our motives. I guess I was naive to think that we could avoid being called racists. Some people, I know now, were going to play the race card no matter how carefully we crafted the law. But it was an overriding concern in the months leading up to the passage of the bill that it equally protect all Arizonans from ethnic profiling and official harassment.
In the midst of our work to refine the bill, Rob Krentz was murdered on the border. It was as if someone had thrown a bucket of gas on a raging fire. A town hall–style meeting with the Border Patrol organized by the Arizona Cattle Growers’ Association attracted 350 people to a one-room schoolhouse in Apache, 110 miles southeast of Tucson. The frustration of the community was palpable in the room. One after another, the ranchers took to the microphone to say that they had been warning about something like this happening for years, and for years they had been ignored. There were repeated calls to put the military on the border. One rancher drew thunderous applause when he suggested not only that the military come, but that it be allowed to use deadly force.
Gabby Giffords was Rob’s representative in Congress. She joined me and Senators McCain and Kyl in calling for the federal government to act. In a letter to President Obama and Homeland Security secretary Napolitano, Gabby said Rob’s killing “is a sober reminder that the safety of U.S. citizens on American soil is under attack. . . . The people I represent are angry and demand action.”
Although Napolitano had supported deploying the National Guard to the border when she was governor—and had pleaded with the Bush administration to keep them there in 2008—she refused the calls for action. All the Department of Homeland Security (DHS) saw fit to do was to offer a $25,000 reward for information leading to Rob’s killer and to issue an empty statement saying they were “carefully monitoring the situation and will continue to ensure that we are doing everything necessary to keep communities along the Southwest border safe.” But clearly their “careful monitoring” had failed. Clearly, what they thought was “everything necessary” was far from enough. We had the grieving Krentz family to remind us of that.
After Rob’s death, we ramped up our efforts to perfect the bill so I could sign it. I was still uneasy about how it would be perceived by Hispanics and other minorities. So I had my staff sit down with counsel from community Hispanic organizations to hear their concerns. They walked through the law clause by clause and pointed out the issues they saw with racial profiling and potential rights violations.
I also heard from leaders from the Jewish community and the Anti-Defamation League. These were people I had known for years who were concerned about the impact of the bill on civil rights. I carefully explained all the steps we were taking to make sure no one was treated unfairly under the law because of their race or nationality. I told them that I genuinely believed what I was doing was right for the people of Arizona—otherwise I wouldn’t do it.
By the time we were done, we had ironed out many of the problems. In a refrain that would later be picked up and repeated ad nauseam by the national press, critics like President Obama were saying that the bill would allow police to approach people on the street and demand papers for no reason. That was flatly untrue. As we pointed out again and again, the language of the statute created a secondary enforcement regime, which means that there first had to be, to quote the law, a “lawful stop, detention or arrest made by a law enforcement official or a law enforcement agency . . . in the enforcement of any other law or ordinance.” In other words, you had to break the law first, and only then, if there was “reasonable suspicion” you were illegal, could you be asked for proof of citizenship.
Opponents of the bill also tried to turn the phrase “reasonable suspicion” into something sinister, as though police could profile under the guise of normal discretion. But reasonable suspicion has been a legal standard in use for decades all over the country. No single factor like having dark skin or speaking Spanish counts as reasonable grounds for suspicion. In legalese, a “totality of circumstances” must be present. For instance, we knew as we were working on it that SB 1070 would most often come into play in the context of a traffic stop for speeding or some other common infraction. In that context, for a police officer to form a “reasonable suspicion” that someone in the car is illegal, he or she would have to witness a number of things. Maybe the vehicle is overloaded with passengers. No one has identification to show. The highway they’re on is a heavily trafficked smuggling route. Not one single factor but several must be present for the officer to be able to ask for proof of legal residence.
We worked hard to make sure that these criteria were clearly spelled out in the law, but some people insisted on distorting them anyway. Alessandra Soler-Meetz, the executive director of the ACLU of Arizona, claimed that SB 1070 gave “every police agency in Arizona a mandate to harass anyone who looks or sounds foreign.” In the end, these arguments came down to nothing more than cheap insults to the men and women of Arizona law enforcement. The presumption seemed to be that underneath their uniforms Arizona’s police officers are a bunch of raging bigots who are just itching for an excuse to harass innocent dark-skinned citizens. We’ve trusted the police to responsibly use the legal standard of reasonable suspicion for decades to fight all kinds of crime. But when we tried to apply the same standard to illegal immigration, suddenly the police were denounced as racists who couldn’t be trusted to enforce the law responsibly. I thought it was insulting and disgraceful.
What we also labored to make clear is that SB 1070 doesn’t require police to stop anyone on the basis of suspicion about illegal status. The law is very clear: Police officers only have to make a “reasonable attempt” to determine immigration status “when practicable.” In practical terms, this means that if police are busy with other matters, or believe that questioning someone about their immigration status would be counterproductive, they don’t have to pursue it.
The law did some other useful things as well. It prohibited local police agencies from adopting “sanctuary policies” through which law enforcement officials shelter known illegal aliens from possible deportation. It included a ban on hiring day laborers on public stree
ts and public places. It also allowed local residents to sue the state or local government if it adopted or implemented “a policy that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law.”
Most important, we made sure that there was language in SB 1070 that expressly prohibited racial profiling under the statute. The language of the original bill said, “A law enforcement official or agency . . . may not solely consider race, color or national origin” in determining reasonable suspicion. Not good enough. We insisted that the word “solely” be removed so that the bill was unequivocal. We added clear language that police “may not consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution.” The law also expressly states that SB 1070 can only be implemented “in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.”
At the end of this exhausting process, I truly believed we had accomplished something that would make the people of Arizona proud. But would it be enough to placate those who were waiting to pounce on the bill? I wanted so much to believe that it would be.
I thought we were in pretty good shape. We had a bill that was fair, effective, and most of all would send a powerful message to Washington, D.C. I felt good, but I still had nagging doubts. One night, after a long day of working out last-minute changes, I turned to Richard Bark, my deputy chief of staff for policy, and said, “They’re still going to call me a lot of names, aren’t they, R.B.?” I could see the pain in Richard’s eyes as he admitted the truth. “Yes, Governor, they are,” he said. “They are going to call you a racist.” Uneasily, I glanced at the floor. “Well,” I whispered, “we just can’t let them stop us from doing what’s right.”