If any one person embodies the complex politics of immigration reform, it is Homeland Security Secretary Janet Napolitano. As governor of Arizona in 2007, she signed one of the nation's toughest state immigration laws, the Legal Arizona Workers Act, which imposed harsh penalties on businesses that knowingly employed undocumented workers. Now, as the nation's top immigration official, she will be asked to weigh in on a lawsuit challenging the constitutionality of that law. The case comes before the U.S. Supreme Court as Washington once again revives efforts to overhaul the nation's immigration laws.
At the time she signed the bill, Napolitano, citing the failure of congressional leaders to take action, insisted that "states like Arizona have no choice but to take strong action to discourage the flow of illegal immigration." Under the law, businesses that willfully hire illegal immigrants can be shut down temporarily or, for a second offense, completely -- a "business death penalty," as Napolitano called it.
"Arizona has taken the most aggressive action in the country against employers who knowingly or intentionally hire undocumented workers," she wrote. The measure was one of hundreds of immigration laws passed across the country, largely as a reaction to the stalemate over the issue in Washington.
The Arizona statute came under immediate attack from disparate groups rarely found on the same side of the table. Legal briefs opposing the law were filed by farmers, contractors and the U.S. Chamber of Commerce, as well as the American Civil Liberties Union and the Mexican American Legal Defense and Educational Fund. The opponents' key legal argument has been that immigration policy should be set by the federal government, not by state and local jurisdictions.
Now that she's exchanged her state hat for a federal one, it will not be surprising if Napolitano opposes the measure she made law. As a governor who grappled politically and fiscally with the consequences of a massive influx of illegal immigrants, she asserted the authority of her state. But that was then. Now, as the Obama administration's point person on the issue, Napolitano is likely to reflect the position her boss took as a candidate, supporting "comprehensive immigration reform so local communities do not continue to take matters into their own hands."
Napolitano's attitudes toward immigration have hardened over the years. First elected governor in 2002 with support from the Latino electorate, she opposed a 2004 Arizona ballot measure that sought to bar illegal immigrants from receiving some public social services. The following year, voicing skepticism about the effectiveness of Bush administration plans to improve fences at the border, she famously proclaimed, "You show me a 50-foot wall, and I'll show you a 51-foot ladder." However, since becoming chief of the Homeland Security Department, the agency responsible for the border fence, she has promised to complete the unfinished portions and has stepped up immigration audits of employers.
Similarly, as officials from Napolitano's agency and the White House work with bipartisan congressional staff to prepare immigration bills that most likely will be introduced in December and January, the consistent theme has been toughness. Sen. Charles E. Schumer (D-N.Y.), who as chairman of the Senate's immigration subcommittee will take a lead role in drafting legislation, has said that a bipartisan immigration bill is doomed "if my colleagues on the other side of the aisle do not believe that Democrats are serious about enforcement." Schumer even denounced use of the term "undocumented workers," suggesting that it conveys legitimacy and signals that the government "is not serious about combating illegal immigration."
In a speech this month laying out the need for reform, Napolitano emphasized a "three-legged stool" approach -- regulating the flow of immigrants, dealing with those who are already here, but beginning, she said, with "fair, reliable enforcement."
Immigration reform advocates trying to build momentum to produce a new law point to favorable poll results on immigration and a desire by both parties to be responsive to Latino voters. But proponents will face stiff obstacles, particularly if a bill includes provisions for what business lobbyists call "future flow" -- allowing employers to bring in foreign workers. Unions worry that without safeguards, imported labor will displace American workers.
The larger stumbling block will be the "tough and fair pathway to earned legal status," as Napolitano put it. It was the legalization aspect of her speech that garnered most news media attention, even though it basically restated President Obama's campaign pledge to bring "the millions of illegal immigrants in this country out of the shadows . . . [by meeting] a number of requirements -- including registering, paying a fine, passing a criminal background check, fully paying all taxes and learning English."
History shows that anti-immigrant sentiment is generally highest during economic downturns, and groups favoring immigration restrictions, such as the Federation for American Immigration Reform, or FAIR, are already citing high U.S. unemployment as a reason to oppose immigration bills. FAIR is joining with the "tea party" crowd that emerged during the healthcare debate, a loud and angry coalition that will be unswayed by the efforts of Napolitano, the Obama administration and their congressional allies to decorate immigration reform packages with law-and-order ribbons.
Jeffrey Kaye is a journalist and the author of "Moving Millions: How Coyote Capitalism Fuels Global Immigration," to be published in April. jeffreykaye.net