Foreign Policy and U.S. Immigration Law

There are two very good posts here and here by Peter Spiro and Julien Ku and over at the Opinio Juris blog concerning U.S. immigration law.

This week the U.S. Supreme Court heard arguments for and against the Arizona Immigration Law SB 1070 which was passed back in 2010 in order to "discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States."  The law has been highly controversial for many reasons.  It is seen as being overly severe and potentially a source of discrimination against Mexican-Americans because "it makes the failure to carry immigration documents a crime and give the police broad power to detain anyone suspected of being in the country illegally."  It also raises the question of who exactly gets to make immigration law in the U.S. - the Federal government exclusively or the States as well?  To understand why this might be a real problem, imagine, if you will, what would happen if every département in France decided to pass its own local rules to refine and enhance the national integration and immigration laws.  Whether it's 50 states or 100 départements, one grasps immediately that this has the potential for becoming an unholy mess (not that U.S. immigration law isn't already there, mind you).  That is why the Department of Justice of the United States has taken the recalcitrant state to court.  United States v. Arizona is being closely watched inside the U.S. but it is also a source of interest outside the United States.

It may be of only passing concern to the state of Arizona but it's important to mention that the people they propose to round up and incarcerate without due process are citizens of another country.  Under international law their home countries do indeed have an interest and a say in what happens to them.  That means that this is not just a domestic issue, it's a foreign policy problem.  As such, it is of more than passing interest to the 6-7 million American citizens living abroad as well as those Americans who travel outside the U.S.

Why?  Because it is crucially important that the United States of America treats foreigners (documented or undocumented) well because it just might have some important implications for how well we will be treated by our host countries.  Did you know that that there are around 1 million Americans in Mexico?  Yes, that's right - 1 million.  In addition the Mexican government estimates that there are at least 200,000 "illegal" Americans.  According to this website, most of these "illegals" are retirees living in Baja though there are also reports of more young people moving south to teach English since the souring of the U.S. economy.  I would add that there are probably a fair number of veterans as well, living there and in other parts of Latin America on military pensions.

Now just imagine a scenario where the Mexican government decides to crack down on these people and harass the legal residents and incarcerate the illegals (all those retirees, English teachers and military veterans.)  Not a very pretty picture is it?

Arizona may not be too concerned by any of this but the U.S government certainly is.  After all, they are the ones who will have to manage the international incidents that may come to pass as a result of Arizona's and other U.S. states' laws.  According to Julien Ku, the Solicitor General did indeed make that argument saying that the Arizona law might have this unhappy result:

"And so — so, you’re going to have a situation of mass incarceration of people who are unlawfully present. That is going to raise — poses a very serious risk of raising significant foreign relations problems.
And these problems are real. It is the problem of reciprocal treatment of the United States citizens in other countries."

To those who argue that the United States is not in the business of allowing its domestic laws to be influenced by foreign governments and to hell with the whole business, I do see some merit to that argument.  After all, I know a lot of people who are not at all amused when the United States tries to influence, let's say, France in the implementation of her local laws and the making of her policies.  But the world has gone global, international migration is a fact, and Americans have a natural desire to be a part of the globalization game.  That means growing numbers of Americans outside the U.S. (just think of them as America's very own "hostages to fortune"):  daughters, sons, retired parents, veterans, childhood friends.  To treat these people as irrelevant or beyond consideration in this debate sends a very interesting message to those of us who live abroad - one that I can only hope can be properly interpreted as a misunderstanding based on simple ignorance and not a disavowal.